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A n G U M E N T 



MADE BEFORE 



IMiiTEE ON THE CONDITION OF AFFAIRS OF ARKANSAS, 
HON. JOHN McCLURE. 



December 17 and 18, ia74. . lUl^g 



Mr. Chairman and Gentlemen of the Committee ; 

I shall assume for the purpose of argunieut, that the first question to 
be determiued in this case is, Wliicli is the true goverumeut of the State 
of Arkansas — that created by the constitution of 1868, or that set up by 
the pretended coustitntion of 1874 ! This question determiued, the next 
question is, Is it administered by the persons chosen in the manner and 
at the time prescribed by the constitution and laws of said State 1 

The land and water within certain geographical limits do not consti- 
tute a State, nor do the peo[)le resident therein constitute it. Therefore, 
before proceeding further in this matter, I regard it a matter of para- 
mount importance to ascertain what constitutes a State. 

The land and water, as I have already stated, within certain geograph- 
ical limits, do not constitute a State; but the territor}^ over which the 
State exercises jurisdiction. Nor do the aggregate inhabitants within 
such limits constitute a State. A political State — and the States of the 
Union are all of this character — is a body-politic qualified to subsist by 
perpetual succession, and fron) generation to generation. It is an or- 
ganization where the innumeral>le will speaks as a unit by its legally 
authorized ofiicers and representatives. It is an organization where, in 
consideration of the surrender of certain natural rights belonging to 
man, the corporate body called the State undertakes the protection of 
the life, liberty, and property ot every person within its juris(li(!tion. 
To the State thus organized the first duty of every peison is allegiance; 
it begins with life and only ends with death. Without the uiiit\ which 
a corporate organization gives, there is no such thing as sovereiijn will. 
The sovereign will in all corporate bodies must be a unit — a legal entity; 
and the moment the sovereign will ceases to be the legal will of the body- 
politic, that moment the sovereignty of the State is at an (Hxd, and in 
its stead you have the personal will of an unorganized inass. Yon no 
longer have an existing State government, nor the seniblan(;e of one. 
The moment the corporate peo|)le cease to exist as such, everything is 
resolved into its natural elements, aiul you have teiritory and people, 
but no government. Under a corporate existence, tlie [)eop'e, in a le^al 
sense, have no right, of themselves., to change the form of government in 
any other manner than that assented to at the time of its organization. 
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In tlieir corporate cliaracter the people can chaiip:e their organic law in 
such parts as to them may seem meet, so loiij; as they do notliiii^i incon- 
sistent with tlie Constitution of the ITiiitecl States, and so loiiji as they 
themselves observe the mode agreed upon when they orf^ani/ed them- 
selves into a body-politic. \^ this mode be strictly adhered t(^ the po- 
litical State and its le<;al entity, are jireserved ; but tlie moment a 
chan.u'e is made by a departure I'rom tlie corporate i)owei's, or in a man- 
ner unknown to the or^anii; act, you have destroyed the corporate ex- 
istence of a State, and cut out the line of succession. Tlie will of the 
corporate body is no louf^vr heard. Its sovereij>iity no longer exists; 
and instead of one voice s])eakinj? f(u- the whole, the voic(Pof the State 
is distributed, not to the departments of governnuMit, but to an unor- 
ganized mob, who have withdrawn their allegiance from the State. 
Such action is nothing more nor less than revolution, an<l before enter- 
ing upon it its consequences should be weiglunl against the evils which 
it is proposed to remedy. There are but two methods by which a writ- 
ten constitution can be changed : one is the method agreed upon at the 
time of its adoption, the other is revolution. The general assembly is 
clothed with ])ower to pro])ose amendments to the constitution, and if 
the people ratify the i)roposed amendments they become a part of the 
organic act. Instead of i)ursMing this method the general assembly has 
attem])ted to create a body foreif/n and nnlnioicn to onr form of,f/ovcrn- 
onent, and clothe it with i)ower, not to amend the constitution, but to erect 
a new fjorernnient, founded on the allegiance of the same persons that owe 
allegiance to the government formed by the constitution of 18(58. Xo 
one of the revolutionists, or friends of the new-constitution movement, 
pretend to be the successors of the government organized in 18(J8; they 
base their right on the power of the peoi)le to make and unmake their 
government at will, regardless of all constitutional inhibition. They 
claim to possess the right to withdraw their allegiance from one form of 
government and transler it to another, of their own creation, at pleas- 
ure. They claim that they are not bound to show any line of succession, 
and that the people i)ossess the inherent power to nuike governments. 
Whether a State of the Union can be wrenched from its orbit, and an- 
other form of government created to exercise jurisdiction over the same 
territory, without the consent or assent of Congress, and in a manner 
unknown to fundamental law, is a question that the Congress of the 
United States is called upon for the tirst time to determine. 

We say that a State government is not an ephemeral thing; that a 
State government once formed continues and is binding on the people 
for all time, unless changed as therein prescribed, and that the causes 
which would justify revolution are the oidy causes that would absolve 
the people from a departure from the strict letter of the constitution. 
This idea of legitimacy and succession cannot be lost sight of, nor can 
the precedents be departed from. It was not out of comi>assion to au 
exiled I>ourbon that Europe consumed one whole generation in blood 
and carnage. The struggle was, not to place a Bourbon on the throne 
because he was a Bourbon, but to sustain their i<leas of legitimacy, and 
the line of succession ; and, in the struggle now being made, every 
State in the Union will be atlected by the precedent set in the Arkansas 
case. If Arkansas can change its form of government and its constitu- 
tion, in a manner uidvnown to and at variance with it, the people of 
every other State of the Union may do the same thing every time they 
become dissatisfied with their otlicers, or whenever one set of partisans, 
by a reign of terror and violence, can disturb the public mind to such 



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an exteut as to induce it to pat another faction in power, by transfer- 
ring their allegiance to another government. 

The question presented to Congress by the Arkansas case is one of 
great importance, involving, among other things, a settlement of the 
question whether the constitution of a State can be altered, changed, or 
amended by the legislature, or the peoj>le, in any other manner than 
that prescribed by the organic act. The constitution of this State pro- 
vides for its own amendment, and we insist, inasmuch as the people 
themselves have pointed out the manner of changing the organic law, 
that the mode ijointed out must be followed, to the exclusion of all 
other. In other words, the enumeration and pointing out how a change 
in the constitution may be effected, excludes the idea that it may be 
done in any other manner, or in any mode not pointed out by the con- 
stitution itself. The legislative power of the State is vested in the gen- 
eral assembly, but it is lodged there, not for the creation of new govern- 
ments, but for the enactment of laws, and with certain limitations and 
restrictions, among which are, that it shall not be so exercised as to 
conflict with the constitution itself, or in such manner as may result in 
the destruction of the instrument from which it derives its sole power 
to legislate. To deny the correctness of this proposition is to say that 
the creature is clothed with power to destioy its creator. Therefore, we 
say that the constitution having pointed oat how the legislature and the 
people may change the same, that mode must be followed, and that 
the pointing out a specific mode for the legislature and the peeple to 
pursue in changing the organic act is an inhibition upon that depart- 
ment of government, and the people themselves, to pursue or propose 
any other. 

Having in brief given you my idea of what constitutes a State, 
let us next inquire what a constitution is, and in making this in- 
quiry I shall not attempt to give you such a definition of the word 
as is attributed to it by politicians, but as the same is defined by 
eminent judges and jurists. Justice Patterson, in the case of Van 
Horne''s Lessee v. Dorrance, (2 Dall., 208,) asks, "What is a consti- 
tution?" In response to the question he said, '' It is the form of gov- 
ernment delineated by the mighty hand of the people, in which certain 
first princii)les of fundamental laws are established. The constitution 
is certain and fixed ; it contains (now mark well what he says) the 
'permanent will of the people, and is the supreme law of the land ; it is 
paramount to the power of the legislature, and can be revoked or altered 
only hi/ the authoritij that made it.'''' 

" Tiie constitution of a State is stable and permanent, not to be worked 
upon in the tem[)er of the times, nor rise and fall with the tide of events. 
Notwithstanding the competition of opposing interests, and the violence 
of contendmg ])arties, it remains firm and immovable as a mountain 
amidst the strife of storms, or a rock in the ocean amidst the raging 
of the waves." 

Tiiat the people of Arkansas, in pursuance of the reconstruction acts, 
framed and adopted a constitution in the year 1808, and that the State 
thus formed was admitted to representation in Congress, is a matter the 
records of Congress fully establish, and one which Congress will no 
doubt take judicial cognizance of. We start, then, with the admission 
that the State of Arkansas, as organized under the reconstruction acts, 
and the constitution of 18(58, was a State of the United States, and as 
such entitled to the protection guaranteed by the fourth section of arti- 
cle four. 

Starting from this point our inquir}^ is, as I have stated, whether the 



StJiteof Arkansas, as orpiiiized uiKlcr tlu'coiistitiitiuii of LSOS, orasorgaii- 
ized consistent tluMi'witli, is yet one of the States of this Union. All 
States have a corporate existence, and in this respec^t they are not unlike 
corporations; and, bein^' so, the same <;eneral rules in relation to powers, 
succession, and liabilities, are not dissimilar. The stockholders in a pri- 
vate corporation may change daily. They may chanp^ their by-laws 
whenever it suits them i)rovided they do not trans<;iess or infringe 
upon the i)rovisions of their charter. So it is with the jieople of a State. 
They U)ay change the organic law thereof whenever it suits their cou- 
venience to do so, i)rovided they do not infringe u])on rights guaran- 
teed by the social comi)act. Majorities, iu a i)rivate coiporatiou, are 
never clothed with ])ower to do wrong, and so with all public cori)ora- 
tions. 1 concede that the i)e()])le of a State have a right to (jhange 
their ibrm of government, bnt hoiv that change is to be etifected, is the 
question now under discussion. That the peoi)le, on their oioi motion^ 
and without the sanction of law, can assemble together and change the 
form of government, I niost emphatically deny. And upon this proposi- 
tion we have what may be regarded as a precedent, and a preceilent 
that Congress is bound to follow. 

The i)eople of lihode Islaiul attempted to change their form of gov- 
ernment without the assent or authority of legislative action. The 
moveiricnt was inaugurated without the forms of law, and a nuijority of 
the legal electors of the State participated in the proceedings and voted 
for the Dorr constitution that was attempted to be foisted on the peo- 
])le of Rhode Island. Jn s[)eHking of that movement, Mr. Webster said : 
" In the exercise of political power through representatives we know 
nothing, we never have known anything, but such an exercise as should 
take i)lace throii(/h the prescribed forms of law. The people limit their 
governments, jS^ational and State, but another principle is equally true 
and certain, and that is that they often limit themselves. Tliey set 
bounds to their own [)ower. They have chosen to secure the institutious 
whicii they establish against sudden impulses of mere majorities. But 
the i)eople limit themselves also in other ways. They limit themselves, 
first, in the exercise of their political rights. They linvit themselves by 
all their constitutions iu two imi)ortant respects — that is to say, in re- 
gard to the ([ualiticitions of electors and iu regard to the qualifications 
of the elected. In every State, and in all the States, the people have 
precluded themselves from voting for everybody they might wish to 
vote for — they have limited their own right of choosing. They have 
said, we will elect no man who has not su(;h and such qualifications. 
We will not vote ourselves unless we have such and such qualifications. 
They have also limited themselves to certain i)rescribed forms for the 
conduct of elections. They must vote at a particular place, at a par- 
ticular time, and under particidar conditions, or not at all. It is in these 
n;odes that we are to ascertain the will of the American people, and our 
Constitution and laws know no other mode. We are not to take the will 
of the people from public meetings nor from tumultuous assemblies, by 
whicii the timid are terrified, the prudent are alarmed, and by which 
society is disturbed. These are not American modes of signifying the 
will of the i)eople, and tliey never were. If anything in this country 
not ascertained by a regular vote, by regular returns, and by regular 
representation, has been established, it is an exception and not the rule. 
It is an anomaly which, I believe, can scarcely be found. Is it not ob- 
vious enough that men cannot get together and count themselves, and 
say they are so many hundreds and so many thousands, and call them- 
selves the people and set up a government l Why, another set of men, 



forty miles off, on the same day, with the same propriety, with as good 
qualifications and in as large numbers, may meet and set up another 
government. What is this bat anarchy ? What liberty is there here 
but tumultuous, tempestuous, violent, stormy liberty — a sort of South 
American liberty, without power, except in its spasms — a liberty sup- 
ported by arms to-day, crushed by arms to-morrow ? Is that our lib- 
erty ! Another well-settled principle is that when, in the course of 
events, it becomes necessary to ascertain the will of the people on a new 
exigency, or a new state of things or of opinion, the legislative power 
provides for that ascertainment by an ordinary act of legislation. * 

* * In what State has an assembly, calling itself the 

people, convened without law, without qualifications, without certain 
officers, with no oaths, securities, or sanctions of any kind, met and 
made a constitution, and called it the constitution of the State ? There 
must be some authentic mode of ascertaining the will of the people, else 
all is anarchy. It resolves itself into the law of the strongest, or, what 
is the same thing, of the most numerous for the moment ; and all con- 
stitutions and all legislative rights are prostrated and disregarded." 

An attempt was made to censure the President for recognizing the 
charter government, in the 23d Congress, but it failed. In that case, in 
response to Governor King, who represented the charter government, the 
President said: " I have, however, to assure your excellency that should 
the time arrive (and my fervent prayer is it may never come) when an 
insurrection shall exist against the government of Rhode Iskmd, and a 
requisition shall be made upon the Executive of the United States to 
furnish that protection which is guaranteed to each State by the Con- 
stitution and laws, I shall not be found to shrink from the performance 
of a duty which, while it is most painful, is at the same time most im- 
perative. I have also to say that in such a contingency the Executive 
could not look into any real or supposed defects of the existing govern- 
ment, in order to ascertain whether some other plan of government ])ro- 
posed for adoption was better suited to the wants and more in accord- 
ance with the wishes of any portion of her citizens. To throw the Exe- 
cutive i)Ower of the Government into any such controversy would be to 
make the President the armed arbitrator between the people of the dif- 
ferent States a?if? their constituted authorities, and might lead to usurped, 
power, dangerous alike to the stability of the State governments and 
the liberties of the people. It will be my duty, on the contrary, to re- 
spect the requisitions of that government which has been recognized as 
the existing government of the State through all time past, until I shall be 
advised in a regular manner that it has been altered and abolished and 
another substituted in its place, by legal and peaceable proceedings, 
adopted and pursued by the authorities and the people of the State." 

For assuming this position and for asserting he would sustain the 
existing government, a committee of the House of Representatives, 
after investigation, reported the following resolution as ex,pressive of 
the sense of that body : 

'•'-Resolved, That the interference by the President of the United States 
with the military power of the Union, on the side of the late charter 
government of Rhode Island, against the constitution adopted in 1841, 
and by which the same was suppressed, was unauthorized by the laws 
of the United States, and in derogation of the rights of the people of 
Rhode Island." 

This resolution failed to pass the House of Representatives, and from 
this it may be inferred that it did not meet the approval of that body, 
and, in point of fact, amounts to an indorsement of the President's ac- 



tion. Not only tliis, it anioiiuts almost, if not ijuitt', to an expiostsiou 
bj" the House of Kcpicsentatives that a State government cannot be 
overtlirown by the i)eop!e, on Ihcir oivn motion, regardless of the forms 
of law. 

But it maybe said that there is a great difference between the Rhode 
Island case and the Arkansas case. So there is. lu the charter of 
Ehode Island there was no mode prescribing how a cliange in the or- 
ganic act should be cflected, and in the Arkansas case there is. In the 
one case the (juestion was as to the power of the people, in their original 
and sovereign ca])acity, to nnmale and destroy an tu'/.s7»i^ government, 
and in the other the question is as to the power of a pretended lajislature 
to do the same thing. I am aware that there are instances where State 
constitutions have been altered, changed, and amended in a manner at 
variance with the constitution of the State, and no doubt these cases 
will be cited as precedents in this; but 1 deny that they are, and assign 
two reasons therefor : First, there was no question as to the organiza- 
tion and legality of the legislature ; and, second, before the action of 
;New York, Illinois, and Tennessee can be accepted as precedents, Con 
GKESS must have taken such action in relation thereto as would author, 
ize the a])plication of the rule of stare decisis. 

There is a great difference between a precedent and an instance. The 
cases cited in the States of Xew York, Illinois, and Tennessee are mere 
instances, and not precedents. A county may vote to take stock in a rail- 
road company without authority of law. If the act be unquestioned 
and the citizens quietly submit and pay a tax levied to pay for the 
stock snbscribed, such action would not constitute a precedent, and the 
citation of such a case would only be the citation of an instance where 
the people had submitted to a wrong. There must be an adjudication of 
a question by a tribunal having jurisdiction of the subject-matter of the 
controversy before a case can be cited as a precedent. We are here dis- 
cussing a question of knc, and not a question of force, acquiescence, or 
revolution. The instances cited wherein States have changed their 
organic law, in a manner at variance with the constitution, may be 
evidence of what was accomplished hy revolution, but they cannot be 
cited to establish what the law is. 

The supreme court of Pennsylvania, in the case of Woods v. Secretary 
of State, (Philadelphia Legal Gazette,) in speaking of this subject of 
"precedent," say : 

*'Xo argument for the implied power of absolute sovereignty can be drawn 
from revolutionary times. Governments thus accepted and ratitied by 
silent submission aflbrd no precedents ior thei)owerof a conventionina time 
of profound tran(piillity, and for a people living under self established safe 
institutions. While conventions are well-known historical modes of pro- 
cedure in the formation of constitutions, they i)rove nothing; for history- 
does not deiine their powers, or estop the people from asserting theirown. 
Limits must be set to power. Liberty absolutely demands security. No 
people can be safe in the presence of a divine right to rule, or of self- 
imputed sovereignty in their servants to bind them. * * * in our 
day conventions imputing sovereignty to themselves have ordained se- 
cession, dragged States into rebellion against the well-known wishes of 
their quiet people, and erected in the midst of the naticm alien State gov- 
ernments and a southern confederacy. * * * We have seen a public 
sentiment formed and elections carried in a few months, and yet the ex- 
citement was as short-lived as it was sudden, moving like a whirlwind. 
Such excitements have tilled a legislature with its partisans. * * * 
Once assembled, a convention, according to this dogma, is all-powerful, 



7 

and may aunul auy declaration in the bill of rights, and proclaim a con- 
stitution without let or hinderance. The fundamental rights of the peo- 
ple, the true principles of civil liberty, the nature of delegated power, 
and the liability of the people to temporary commotion, all rise up in 
earnest protest against such a doctrine of imputed sovereignty in the 
mere servants of the people." 

I assert that the people of the State of Arkansas cannot change their 
constitution in any other mode or manner than that pointed out by the 
constitution itself. The general rule in relation to the construction of a 
constitution is that it is a limitation upon the powers of the legislative 
department, and a grant to the executive and judicial departments. 
Eut to all general rules there are exceptions. Ordinarily, in speaking 
of the power of the legislature, we say that it may do anything that it 
is not expressly prohibited from doing by the constitution, but this is 
not true. The true rule is that it may do anything it is not prohibited 
from doing by express inhibition, or necessary implication. 

Where the constitution directs or points out how a thing is to be 
done, this pointing out amounts to an implication that it is not to be 
done in any other manner, and it amounts to an inhibition upon the leg- 
islature, to pursue any other course, to accomplish the same object, or 
produce the same result. 

In the case of the C. W. d; Z. B. B. v. Clinton County, (1 O. S., 84,) 
Judge Eanney says : 

" The authority of the general assembly is much too broadly stated, 
when it is claimed that all their acts must be regarded as valid which 
are not expressly inhibited by the constitution." Continuing, he says : 
" A moment's attention to principles, which must be regarded as funda- 
mental, in all American systems of government, will demonstrate the 
unsoundness of such a conclusion. * * Unlike the constitution of the 
United States, and from the necessity of the case, no attempt at a spe- 
cific enumeration of tlte items of legislative power is made in a State 
constitution. This must always be determined from the nature of the 
power exercised. If it is found to fall within the general terms of the 
grant, we can only look to the other parts of the constitution for limita- 
tions upon it ; if none are there found, none exist. But as the general 
assembly, like other departments of the government, exercises delegated 
authority, it cannot be doubted that auy act passed by it, not falling 
FAIRLY within the scope of legislative power ^ is clearly as void as though 
expressly prohibited." 

There is a vast difference between legislative power and political 
l)ower. 

ISTow and then you may find a loose, unguarded expression, where 
some persons of judicial attainments may have said that the legislature 
was the political department of the government; but it is a perversion 
of the meaning of words to make such a declaration. 

I know of but two instances where the legislature of Arkansas is au- 
thorized to Qx.Qv<As,Q political power, or power of a political' nature : the 
one case is in the selection of a senator to represent the State in Con- 
gress, and the other is, when the legislature is proposing and acting on 
amendments to the constitution. In all other respects, the sole power 
of the legislature is to legislate. 

Let us see if I am not borne out in the view I have stated. 

Section one of Article X, of the constitution, is as follows : 

" The legislative power of this State shall be vested in a general as- 
sembly, which shall consist of a senate and house of representatives." 

What is the meaning of the words "legislative power''" Bouvier 



8 

defines it thus: "The authority imder tbe Constitution to make laicSj 
and to alter or repeal tlieni." 

Having seen where the legislative power is lodged, let ns see where 
the 2>f>litieal power is. 

The lirst section of the bill of rights declares that, ^^All jyolitical power 
is inherent (not in the legislature, but) in the people." 

Having shown, conclusively, that no power but legislative power is 
vested in the general assembly, and that all political power, by the 
terms of the constitution, is declared to be in the peoi)le, let us return 
and examine the constitution, and see, as Judge llanney says, if the 
act alluded to comes witliin any limitation of the constitution, either 
express or implied. The first section of the bill of rights declares that, 
"Government is instituted for the protection, security, and benefit of 
the people, and they have a right to alter or reform tlie same, whenever 
the public good may require it." 

The declaration is, that the right to "alter" or "reform" the Govern- 
ment is a right that belongs to the people. ISl"ow, how is this alteration 
or reformation to be brought about? And have the people pointed out 
any method by which this is to be accom{)lished ! 

Article XllI of the constitution reads as follows : 

Section 1. Any amendment to this constitution may be proposed in 
either bouse of the general assembly, and if the same shall be agreed to 
by a majority of the members elected to each of the houses, such pro- 
posed amendment shall be entered on the journals, with the yeas and 
nays taken thereon, and referred to the legislature to be chosen at the 
next general election, and shall be pnblislied as provided by law for 
three months previous to the time of making such choice, and if the 
general assembly so next chosen, as aforesaid, (and if) such proposed 
amendment, or amendments, shall be agreed to by a majority of all the 
members elected to each house, then it shall be the duty of the general 
assembly to submit such proposed amendment or amendments to the 
people in such manner and at such time as the general assembly may 
provide, and if the people shall approve and ratify such amendment or 
amendments, by a majority of the electors qualified to vote for members 
of the general assembly voting thereon, such amendment or amend- 
ments shall become a part of the constitution. 

Section 2. If two or more amendments shall be subniitted at the 
same time they shall be submitted in such a manner that the electors 
shall vote for or against each of said amendments. 

This is the mode pointed out by the people, by whicii the constitution 
was to be ^'^ aJtereiV oy '■'■reformed.''' In pointing out that mode the members 
of the legislature are made instruments to execute the will of the people 
in altering or reforming the government. Now, the question arises, 
does this fact, of itself, raise the implication that the constitution was 
not to be changed in any otlier manner? I think it does. In the case 
of Page v. Allen, (58 i'a., 3;38,) it was held that " the expression of one 
thing in the constitution is the exclusio]i of things not expressed." 

Tested by this ride, the expression of hoiv a constitution may be 
changed, excludes the idea that it may be done in another and dilferent 
manner than the mode therein specified. {Cronise v. Cronise, 54: Pa., 
255 ; Tu-itchell v. JJlodget, 13 Mich., 127.) 

In the case of People v. Field, (2 Scam., 70,) the supreme court of Illi- 
nois said, " Where the means of a granted power are given, no other or 
different means or ])owers can he implied on account of convenience or 
of being more effectual." 
That the constitution points out how the members of the legislature 



mast proceed in the eveut a change is desired, in the fundamental law, 
cannot be denied. This being true, the rule laid down in the case of 
The People r. Field, would place the act calling a constitutional con- 
vention outside of the scope of the legislative power. 

Vattel says, (p. 11,) "It is asked whether the legislaiii'e power extends 
to the fundamental laws ; whether they may change the constitution of 
the Stated' In resxjonse to this question he says, "The principles we 
have laid down lead us to decide, with certaijity, that the authority of 
these legislators does not extend so far, and they ought to consider the 
fundamental law as sacred if the nation has not in express terms given 
them power to 'change it ; for the constitution of the State ought to 
possess stability, and since that was first established by the nation, 
which afterward intrusted certain persons with the legislative power, 
the fundamental law is excepted from their commission. 

" It is visible that the society only intended to make provision for 
having the State constantly famished with laws suited to particular 
conjanctures, and, for that purpose, gave the legislature the power of 
ahrogating the ancient civil and political laws that were not funda- 
mental, and of making new ones.'''' 

Here we have it asserted that the legislative department cannot 
change the constitution unless the power is conferred. In the present 
instance the |>ou-er is co?(/err^r7, and that brings us back to the propo- 
sition that we started with, that if a poicer he conferred, and the man- 
ner of exercising it is pointed out specifically, whether or not that 
pointing out does not amount to an inhibition on the legislature to pursue 
any other ? 

Judge Patterson, in the case of Van Home's Lessee v. Dorrance, (2 
Dall., 303,) in speaking of the power of a legislature said, "What are 
legislatures? Creatures of the constitution; they owe their existence 
to the constitution; they derive their powers from the constitution. It 
is their commission, and therefore all their acts must be conformable to 
it or else they will be void. The constitution is the work or will of the 
people themselves in their original, sovereign, and unlimited capacity. 
Law is the work or will of the legislature in their derivative and subor- 
dinate capacity. The one is the work of the creator, and the other of 
the creature. The constitution fixes limits to the exercise of legislative 
authority and prescribes the orbit within which it must move." 

After citing the article in the bill of rights, declaring that all men 
have a natural and unalienable right to worship God according to the 
dictates of their own conscience, and the thirty-second section of the 
constitution that ordains "that all elections whether by the people, or 
in assembly, shall be by ballot, free and voluntary," he asks, "Could the 
legislature have annulled these articles, respecting religion, the rights 
of conscience, and elections by ballot "^j Sarely not. As to these points 
there was no devolution of power ; the authority was purposely with- 
held, and reserved by the people to themselves. * * * The consti- 
tution of the State is stable and permanent, not to be worked upon by 
the temper of the times, nor. to rise and fall with the tide of events." 

But it is urged that the people in their sovereign power may do any- 
thing ; if this be true, no act of the legislature was needed ; if it is 
not true, an act of the legislature, not within the scope of legislative 
power, has not conferred any right on the people. There is quite a 
delusion in the minds of many apparently well-informed people, that 
the sovereignty of the State resides with and remains in the people in 
a constitutional government. This, however, is not true. 

Ml". Carpenter, in discussing the question of sovereignty in the peo- 



10 

pie, says, (4 Wis., 5!)0,) " Sometimes it is said soverclfjnty is with the 
peopU^ All this Jaiy^on comes from coiifouiKliiiji' the rights of the peo- 
ple under the government with t\w right of the people to overthrow 
the government. 'Tlie sovereignty of the i)eople' is to a politician a 
sweet morsel; to a lawyer and judge an unmeaning and seuseless 
sound. ♦ * * Xhe i>eopl(% under a government, have none of the 
attributes of sovereignty. Tliey establish the government, and in so 
doing part with tlieir sovereignty and tJie government \\\n}\\ established 
is as completely sovereign as Alexander is sovereign in his dominions. 
The sovereignty of the people under the government is ?i fiction.''^ 

(^►uoting from Vattel, (eh. 4,) he says : " Sovereignty is that public 
authority which commands in civil society, and orders and directs what 
each citizen is to perform to obtain the end of its institution. This au- 
thority originally and essentially belonged to the body of the society, 
to which each member submitted and ceded his natural right of con- 
ducting himself in everything as he pleased, according to the dictates 
of his ov>'u understanding, and of (h)ing himself justice.'' 

Mr. liyan, who 1 understand is now on the sui)reme bench of Wiscon- 
sin, in arguing and deiining this thing called " the sovereignty of the 
peoi)le,'' says: "We confound the idea of sovereignty with that of inde- 
pendent power. In international law nations are called _po/r<?>'.s', but not 
sovereignties * * * ^ Wisconsin is a poicer among the 
other States of the nation ; it may be a sovereign power so far as by 
that is understood an independent power, and, except when it has parted 
with power by treaty or confederation ; but in its internal organization 
there is no sovereignty — it is a mere idea, a dream, a dormant fee, 
W'hich, at some future period, may be invoked and invested in a sov- 
ereign. The sovereign is the absolute power of law, of justice, and ad- 
ministration. 1 deny that in the people of this State (Wisconsin) is 
vested any such power. In our government there is no source from 
which sucli power can be derived. God gave us no sovereignty in a 
state of nature. The (u/yregate people of this State have no sovereignty, 
no absolute power of tyranny over the humblest person in its limits." 

Orton, in speaking of the same subject, says : " If the people are sov- 
ereign, they are above the law, they are above the constitution. But can 
any one man, can^ any ten men, can a majority of the peoi)le, defy the 
law, or violate the law f Suppose they all went on a certain day and 
voted to destroy the constitution ; is it destroyed ? The waves of pop- 
ular tumult may dash against it in vain. The constitution cannot be 
changed, except constitutionaUy. It provides in itsv'Z/just how it may 
be amended, and it can be amended in no other way. Can the people 
meet to-morrow and vote to strike out Article V 1 They cannot do it. 
It can only be done in the course provided by the constitution itself; and 
if the people cannot atnend it, they certainly cannot abrogate it." 

Judge Smith, (4 Wis., 750,) in commenting on the power of the people 
and the force of the constitution of Wisconsin, says : " They ordered a 
convention of delegates of the people to form a constitution, which 
should be proposed to the people as the fundamental law of the State, 
not for the guide and government of the agents only, but also for the 
guide and government of the people of the State, to abide and continue 
until they should alter the t^'Amn according to thcforniH hy them prescrihed.^^ 

In the case of Price v. Foster, (4 llarr., 4-8,) the supreme court of 
Delaware said : 

" The legislative, executive, and judicial powers compose the sovereign 
power of a State. The sovereign power, therefore, of this State resides 
with the legislative, executive, and judicial departments. Having thus 



11 

transferred tlte soverign power, tlie people cannot assume any portion of it. 
To do so would be tm iiifractiou of the coustitutiou aud a dissolution of 
the f/overmnent Nor can they interfere with the exercise of any part 
of tiie sovereign power, except by petition, remonstrance, and address. 
They have the power to change or alter the constitution, but this can be 
done only in the mode prescribed by the instrument itself. The attempt 
to do so in any other mode is revolutionary. * * * 

"Neither the legislative, executive, nor judicial department, sepa- 
rately, nor all combined, can devolve on the people the exercise of any 
part of the sovereign power. The assumption of power to do so would 
be usurpation. The department arrogating it would elevate itself 
above the constitution, overturn the foundation on which its own au- 
thority rests, demolish the whole frame and texture of our republican 
form of government, and prostrate everything to the worst species of 
tyranny and despotism or the ever-varying will of an irresponsible 
multitude. ***** 

The powers of government are trusts of high importance, and in no 
case whatever can they be transferred or delegated to any other body of 
persons, not even to the whole people of the State." 

I think the citations thus far made must convince you of three things : 
First, that only legislative power is vested in the general assembly ; 
second, that the political power of the government is in the jjcople ; and, 
third, that the sovereign power of the State is vested in the government. 

The constitution of the State of Massachusetts contained a provision 
for its amendment, in every respect similar to that of this State, and the 
house of representatives of that State submitted the following question 
to its supreme court : 

"Whether, if the legislature should submit to the people, to vote upon, 
the expediency of having a convention of delegates of the people, for 
the purpose of revising or altering the constitution of the Common- 
wealth, in any specified part of the same, and a majority of the people 
voting thereon should decide in favor thereof, couhl such convention 
holden in pursuance thereof act upon and propose to the people amend- 
ments in other parts of the constitution, not specified V 

Now mark the answer : 

" Considering that the constitution has vested no authority in the leg- 
islature, in its ordinary action, to provide by law for submitting to the 
people the expediency of calling a conVeution of delegates, for the 
purpose of revising or altering the constitution, it is difficult to give an 
opinion, what would be the power of such convention if called." (6 
Cush., 673.) 

The point to which I desire to direct your attention in this answer 
is, that Judge Shaw plainly and distinctly asserts, that in its ordinary 
action (legislation) the legislature is not vested with authority to sub- 
mit such a question to the people. The constitution of this State has 
vested no authority in the legislature to submit such a question to the 
people of Arkansas, unless the powder belongs to it under the scope of 
ordinary legislative power ; and this the supreme court of JNIassachu- 
setts has distinctly and emphatically asserted it did not. The house 
of representatives of Massachusetts also submitted another question to 
the supreme court of that State, which it answered, that I regard as 
conclusively settling the question, so far as the law of the case is con- 
cerned. The question was, whether the constitution of Massachusetts 
could be amended, altered or changed, in any other manner than that 
pointed out by the constitution itself f 

In reply to this the court said : 



12 

" Cousidering that previous to 1S20 no mode was provided by the con- 
stitution for its aTuendment ; that no other power for tliat purpose, than 
in the mode uIUkUhI to, is anywhere given in the constitution, by impli- 
cation or otherwise, and that the mode provided thereby appears to have 
been carefully considered, and the power of altering tlie constitution 
cautiously restrained and guarded, we think a strong im])li('-ation arises 
against the existence of any other poiccr under the Constitution, for the 
same puri)ose.'' 

The constitution of Arkansas, like that of Massachusetts, upon its 
face, shows that the mode of altering or reforming the same was care- 
fully considered, and cautiously restrained, and if a strong iini)licatiou 
arises in the one case it arises in the other. This Massachusetts case is 
the only instance I have come across where a judicial tribunal has con- 
strued the powers of a legislature under a constitution almost indentical 
with our own. 

I could cite the expressions of other judges, and courts of ability, all 
going to prove and sustain the law as stated by the supreme court of 
Massachusetts ; but, if what the supreme courts of Dehiware, Wisconsin, 
and that of Massachusetts have said is not conclusive, and the revolu- 
tionary action of what has been clone in other States without warrant or 
authority of laic, and in defiance therof, is to be regarded as precedents 
of r/(y//^ instead of power and wrong, the decision of the supreme courts 
of ever}' State in the Union would not satisfy or convince the judgment 
of those who point to successful revolutions to evidence what the law is. 

The rule of construction applicable to a State constitution ought to 
be uniform ; that is, words that by implication amount to an inhibition 
in one portion of the instrument should raise the same implication in 
another. Section 19 of article 6 of the constitution ot Arkansas 
declares that, " contested elections (for the office of governor, &c.) 
shall be determined by both houses of the general assembly, in such 
manner as is, or may hereafter be, prescribed by law." 

After the adoption of the constitution containing the section quoted, 
the legislature passed an act allowing the claimant to an olfice to com- 
mence suit in the circuit court for the recovery of a State or county office 
wrongfully held by another. Under the statutes alluded to 13 rooks 
commenced an action against Baxter, in the proper court, for the recov- 
ery of the office of governor. In April last a judgment of ouster was 
rendered against Baxter, and a judgment for the office in favor of 
Brooks. The court rendering the judgment was one of original and 
general jurisdiction. Be/ore judgment no writ of prohibition was ap- 
jdied for or granted, aiul after judgment no supersedeas w\as applied 
for or granted, nor was the judg^ient even appealed from by Baxter. 
After tlie rendition of this judgment, the record in the case alluded to 
"was introduced as evidence in a cause pending in tlie supreme court to 
establish Brooks's right, as governor, to draw on a fund i)laced by law 
under the control of the governor of the State. For the reason stated 
the court admitted the record as evidence, and upon that state of case 
directed the treasurer of State to pay on the requisition of Brooks as 
governor. 

Baxter, treating both judgments as nullities, appealed to the Presi- 
dent for aid to oust Brooks, who had taken possession, from the office of 
governor. The Attorney-General, in disposing of thecpiestion, assumes 
the position that, under the provisions of section 19 of article 6, the 
act conferring jurisdiction on the courts is void, and that the legislature 
cannot delegate an exclusive power to another body or tribunal for the 
determination of a question that it must determine for itself. If you 



13 

* 

will examine the provisiou cited, you will find that no exclusive words 
are used ; you will fiud that uo prohibitory words are used ; yet the Attor- 
ney-General is of opinion that the designation of the general assembly to 
hear and determine a question of contest, inhibits any other tribunal 
from attempting to decide or deciding the same question, and the Pres- 
ident, acting on that ojnnion, commanded Mr. Brooks and his friends to 
disperse. Now, if it be true that the mere designation of the general 
assembly to hear a contest for the office of governor, (for it is a power 
the legislature could have conferred upon itself by an act, if the consti- 
tution had been silent,) precludes that body from delegating its power 
in case of contest, is it not equally true that the designation of the 
members of the general assembly as being the persons who should i)ro- 
pose and pass upon amendments to the constitution, precludes them 
from providing that it shall be done by any one else? What is the dif- 
ference between an attempt to confer jurisdiction on a court to hear and 
determine a matter that should be determined by the legislature, and an 
attempt to confer the power on a set of delegates to amend the constitu- 
tution, when the instrument itself says it shall be amended by the direct 
action of the members of the general assembly I 

The constitution was intended by the people, when it was framed 
and adopted, to create a permanent form of government. The eighth 
section of article five provides for the enumeration of the inhabitants of the 
State in the year 1875, and every ten years thereafter. It also provides 
" that there shall be uo apportionment (for representatives) other than 
that made in this constitution, until after the enumeration to be made 
in the year 1875." This clause evidences an intention to create a con- 
tinuous government, and one the representation in which was not to be 
changed until after the year 1875. This clause is just as much a limita- 
tion on the people as upon the legislature. 

The practice and theory of all the States has been that, if the consti- , 
tution w^as silent as to the manner and mode of amending or altering 
the instrnment, the legislature was clothed with power to submit the 
question to the people, not only as to the propriety of calling a conven- 
tion to amend the constitution, but to make a new constitution. The 
reason why the legislature was conceded the power of providing the 
mode and manner of taking the sense of the people on the subject of re- 
forming and amending the organic act is, that in this manner revolution 
was avoided and the line of succession could be preserved. Without a 
law, the voice of the people could not be heard in an authorized form. 
An unauthorized expression of the people cannot confer power. The 
people can only speak through the forms of the law. With this state- 
ment of facts before us, let us examine what could have been the object 
of the framers of the constitution when they inserted the thirteenth 
article in the constitution of the State of Arkansas. 

Let us examine that article and see what intent is disclosed therein. 
I insist that the whole spirit and intent of the article evinces a disposition 
to change the formerruleand to spare the people the cost and exi)enseof 
electing delegates to a convention, and tb confer the powers that had been 
previously exercised by a constitutional conv-ention on the members of 
the legislature. It not only discloses such an intent, but'it shows that 
the constitution was not to be hastily amended or changed. That the peo- 
pledidinteudtocarefully guard, and restrain any suddenand hasty change 
in their form of government, is evidenced by the fact that the amend- 
ments should be submitted to two different legislatures. It is not only 
evidenced in this, but it is evidenced by the fact that the proposed 
amendment should be published three months before the election of 



14 

the ropreseutatives that are to pass upon the aiuondineiit, inuiu'diately 
before the same is submitted to the people. It is iu)t only evidenced ia 
this, but it is evidenced in the fact that no amendment should be sub- 
mitted to the peoi)le and the State charged with the expense of an elec- 
tion, nidess the anuMidnuMit was of such a character as to comnuMid it to 
at least a majority of the members elected to each branch of the gen- 
eral assembly. 

Now take all these evidences of an intent to prevent any hasty amend- 
ment or alteration of the constitution, and tell me whether they do not 
raise an implication that ^'.s.v than a majority of the members of each 
house shoiUd have the [)owcr to take the initiative for tlu? (lestniction oH 
a constitution, they had not the power to take the preliminary stei)s for 
its anuMubuent. Does not the fact that less than a majority could not 
take the initiatory to amoid the constitution, raise the implication that 
they could not take the initiative to destroy it? 

It seems to me that the obvious intent of the thirteenth article of the 
constitution is to inhibit the submission of an amendment to, or a change 
in, the same to be made unless "a majority of the meml)er8 elected to 
each house"* shall be of opinion that a necessity existed for a change in 
the organic act. Forty-two members in the house constitute a quorum 
and fourteen in the senate. Twenty-two members of the house consti- 
tute a majority of a fpiorum, and eiglit members of the senate constitute 
a majority of a ([uorum in that body. Can it be true th;it ticcniy- 
two members of the house and eight of the senate are clothed with 
power to provide a means whereby the constitution may be abolished,, 
M'lien the same instrument requires the asscuit of forty-ttco members of 
the house and fourteen members of the senate to assent to a proposi- 
tion to amend the same, on tico different occasions, before the people 
can vote thereon. 

The inherent right of the people is one thing ; but just what, is not well 
dehned. No matter what it is, it is separate and distinct from the rights of 
the members of the legislature. The '•'•inherent riglits" of a member of the 
general assembly, if he has any rights at all, is to legislate, and if he desires 
the constitution amended, the coustitution points out to him how he must 
proceed, and he can proceed in no other manner. If " the j)eople" of a State 
have the right to change tlieirform of government, in a manner at vari- 
ance with the constitution, then " the people " of the United States have 
the same right. The Constitution of the United States, like the constitu- 
tion of a State, is the work of the people. If they can destroy the one, 
they can destroy the «ther. 

Article 5 of the Constitution of the United States declares : 

"The Congress, w'henever two-thirds of both Houses shall deem it nec- 
essary, shall proi)ose amendments to this Constitution ; or on the appli- 
cation of the legislatures of two-thirds of the several States shall call a 
convention for proposing amendments, which in either case shall be 
valid to all intents and purposes as a part of tliis Constitution, when 
ratitied by the legislatures of three-fourths of the States, or by conven- 
tions in three fourths thereof, as the one or the other modeof ratitication 
may be proposed by Congress." 

There is nothing in the language of this section that /n express terms 
pr()hil)its the Congress of the United States from ])assing a law and 
taking the sense of the j)eople on th(; subject of calling a constitutional 
convention, and tiie election of delegates thereto; yet I api)rehend no 
one of you would entertain such a proposition for a moment. Why is 
it that you would entertain it in the one case ami not in the other f 
Under what rule of construction can you say that the language amounts 



15 

to an inliibition in the one case, and not in tbe other! The rule of con- 
struction, applicable to the Constitution of the United States is, that 
Congress has no powers save those granted in express terms or such as 
arise by necessary implication. It is construed almost with the strict- 
ness of a grant. The rights not granted are reserved to the States, or 
the people respectively. Why is it then that the people of the United 
States have not the power to alter, amend, or abolish the Constitution of 
the United States by a convention of delegates chosen in pursuance of an 
act of Congress, at variance with the fifth article thereof ? The answeris, 
they have pointed out how the change should be made, and bound them- 
selves to pursue that method. The duty of obedience is a necessary 
corollary to the right to contract. The very right to institute govern- 
ment, the right of individuals to part with a portion of natural power 
for the advantages of associated strength, the vesting of power in a 
common agency, proceeds upon the hypothesis, that the terms of the 
compact will be faithfully observed. If a mere majority may trample 
on the terms of the compact, when that majority has solemnly agreed 
that the terms of the compact shall not be altered without the assent of 
two-thirds, how are the weak to protect themselves against the oppres- 
sion of the strong ? How are the timid and prudent to protect them- 
selves against violence, and the accumulations of labor against rapacity ? 

1^0 doubt it will be argued that the people have an inherent right to 
make governments and unmake them at pleasure, that they cannot limit 
or restrict themselves if they desire to, and that there is no power to 
supervise their action. This is the argument of the demagogue, the 
argument of the fanatic ; a delusion that led the South into rebellion, 
and which cost the iSTorth three hundred and twenty thousand lives to 
demonstrate was not true. The object of the people in forming civil 
government is to establish justice, insure domestic tranquillity, promote 
the general welfare, and secure the blessings of liberty to themselves 
and posterity. It is to this end constitutions are adopted and gov- 
ernments instituted. A constitution once adopted and a government 
organized thereunder, should not for light and transient causes be set 
aside. The causes that justify a departure from the terms of the com- 
pact are those that vio\\\y\. justify revolution. The signers of the Declara- 
tion of Independence declare that it is only the right of the people to 
change their form of government, and throw oft' their allegiance, when 
the government fails to protect them in life, liberty, property, and the 
pursuit of happiness. These are inalienable rights; these are the rights 
that cannot be alienated. The right to vote, and to make and unmake 
governments at pleasure, is not one of the inalienable rights of mankind 
or of an elector. The people of the United States limit themselves, and 
why cannot the people of the States do the same thing? Not a temporary 
limitation, but one that must exist for all time. For instance, the Con- 
stitution of the United States can never be so amended, without its 
consent, as to deprive any one of the States of equal representation in 
the Senate. 

Nor is it true that there is no power to supervise the 'action of the 
psople in the alteration of the constitution of a State. The object of sec- 
tion four of article four of the Constitution of the United States was to 
create a supervisory power over this very question, and to protect the 
States against a revolution founded on fraud or conspiracy, or a revolu- 
tion brought about by actual bloodshed and domestic violence. 

"The United States shall guarantee to every State in this Union a 
republican form of government, and shall protect each of them against 
invasion, and on ai^plication of the legislature, or of the executive (when 



16 

the Icfjislatnre cannot be convened,) a^^ainst domestic violence." This 
lan<iua,iie j>iv8ni)i)0.ses the existence of a State government havinf>' a 
leyishitnre and an executive. The contin<;ency eontem[)hited by tlie 
Constitution has arisen in the State of Arkansas. The executive of the 
State of Arkansas has ai)i)lied to tiie President to aid him in sui)j)ress- 
ing an insurrection against the State government thereof. Tlie Presi- 
dent seems to be in doubt as to who the executive of Arkansas is, or, if 
not in doubt on that subject, as to wliich government the guarantee 
ai)i)lies. The guarantee is, not that the President shall guarantee to 
each State of the Union a republican form of government, but that the 
United States shall. Congress, by the terms of the first article of the 
Constitution, is clothed with i)ower " to make all laws which shall be 
necessary and proper for carrying into execution * * * all jiowers 
vested by this Constitution in the Government of tlie United StutesP The 
guarantee is that of the United States, and by the terms of the section 
quoted, Congress is designated as the power to carry the giuirantee into 
execution. We are here, among other things, asking the exercise of 
this poAver and the enforcement of the guarantee. 

If you will but stop and retlect one moment, you will at once see 
there is no necessity for indulging in the idea that the inherent right of 
recolution belongs to the people of a State. There is no state of case, 
nor can one be stated, that will justify the people of a State in embark- 
ing in, or resorting to, a revolution, either actual or political, to change 
their form of government. Inde})endent powers or independent sover- 
eignties may do as they please, but a State is not an independent 
potver, nor is it an independent sovereignty. The States are integral 4 

parts of the American Union, and, as such, are guaranteed protection, \ 

by section four of article four of the Constitution of the United States, 
against invasion and domestic violence. Xot only this, but by the act 
of Congress of February 28, 1705, power is conferred on the President, 
"in case of insurrection in any State against the government thereof^'''' 
to suppress such insurrection. Not only this, but a republican form of 
government is guaranteed to the people of a State by the Government 
of the United States. This being true, what is there that justilies vio- 
lence or revolution toward an existing State government f You may 
say its officers may become corrupt, that the necessities of the times, 
and the i)rogress of events, absolutely demand a change. You may 
say all this, and it may all be admitted to be true, and it presents no 
state of case that cannot be remedied by amendment and under the 
forms of law. If the State government should be administered cor- 
ruptly and oppressively', the remedy of the people is not destroyed, 
nor is it taken away. If a government that was once republican iu 
form has ceased to be such, and the legislature would take no action to 
remedy the matter, the people are not powerless, nor would such state 
of case justify revolution. The first amendment to the Constitu- 
tion of the United States asserts that the people have " the right 
peaceably to assemble, and to petition the Government for a redress 
of grievances." Would it not be a " grievance" if the officers of gov- 
ernmeut should so administer the State government, that it was no 
longer republican in form % Is not Congress clothed with power to 
ascertain the fact whether a republican form of government exists in a 
State? or is the question as to whether a republican form of govern- 
ment exists iu a State to be determined hg the people of the State f 
The Kentucky and Virginia resolutions of 1798 asserted that the States 
Lad an e<iual power with the Government to judge of such questions. 
The lieople of ten or twelve States of this Union asserted some such 



17 

doctrine in 1861, mul tlie matter was submitted to the arbitrament of 
arms. In the cdutest the advocates of that heresy lost, and, notwith- 
standing this, we find tliese self-same peo[)le asking a recognition of 
their doctrine at the hands of a Congress composed, politically, of the 
men who furnished the sinews of war tliat decided the question. 
Arkansas, at the beginning of this controversy, ivas a State of the 
Union, and the presumption is that it had a government that was repub- 
lican in form. If that republican form of government ceased to exist, 
when did the change take place, and when was such a decision rendered, 
and by what tribunal? Congress has not decided that there is not a 
republican form of government in Arkansas; but it may be said the 
people of Arkansas have. I reply by saying tliat the people of Arkan- 
sas have no jurisdiction of the subject-matter, and no power to decide 
such a question. In order to show you that the peoi)Ie of a State can- 
not decide such a question for themselves, let me call your attention to 
a matter of history. Tlie legislature of ISOO-'liT, composed of the same 
kith and kin as those who now represent the Garland government, passed 
the following joint resolution: 

" Resolved, That the existing government of the State is hereby de- 
clared to be ' republican in form,' in conformity with the constitution 
and constitutional law, and, as such, is the true and proper government 
of the State, and of right ought to be recognized as a member of the 
Federal Union, and entitled to its representation in Congress, with ail 
the rights and privileges of other States." 

Now, if this was a political question, for the State to determine, I sub- 
rait to you that the action of the legislature settled the question ; but 
Congress, in less than one month after the [)assage of this resolution, 
passed an act the commencement of which is, " Whereas, no legal State 
governments, or adequate protection tor life or property, now exist in 
the rebel States of Arkansas, &c. : Therefore, be it enacted," &c. The 
ground for interference, as will be seen, is that there is no " adequate 
l)rotectiou for life or proi)erty." Hence, there was not a republican 
form of government, and Congress took the necessary steps to furnish 
it. How it is that men will contend that the i>eopIe of a State have an 
inherent right of revolution, to violently displace an existing State gov- 
ernment whicli Congress has said was rei>ublican in form, when the right 
of amendment is given, and when, by petition to Congress, the people 
may have that form of government preserved, is beyond my comprehen- 
sion or understanding. 

But let us look at this thing from another stand-point. For the pur- 
pose of argument, let us suppose that the people have an inherent right 
to alter or cuange their constitution at pleasure, under the forms of law, 
and that the legislature has the undoubted power to provide for calling 
a constitutional convention. At this point, it becomes necessary, for 
the elucidation of the question, to refer to the statement of facts that is 
established by the evidence taken by the committee. It is in evidence that 
an election was held in the State of Arkansas, on the 5th of Noveml>er, 
1872, for the elecition of State officers from governor down, and for the 
election of members of the general assembly. It is in evidence that a 
general assembly was duly organized in January of 1873, the members 
of which (saving and excepting such members of the senate as held 
over) were elected at the November election in 1872. It is in evidence 
that there was not a va(;ancy in either branch of the general assem- 
bly at the time of its adjourn-nent, in April of 1873, and that, on the 25th 
day of that month, the legislature adjourned sine die. It is in evidence 
that during the session no vacancies were declared in either house that 
2 a"" 



18 



were not nilod durina- the session ; that but .s•^r members of tlK> bo se 
Iml none or tlie me.nbers of the senate resi.u'-.ea In^tween the a<l omu- 
nen n \pril of 187;}, and the 4lh day of November L.<.'.. (the (h,> o 
eeet\o )a thatno member of either house died dunnj,- the period 
n^Zu^d^ that no writs of election have been issued, and noelee mns 
heldo till vacancies occurring between the 4th »^^.«;-*\"'^>7' V^,'^' 
an Vl.e lOth of May, 1874 ; that, on the 22d ot ^P-U^; ^;^^- - -- 
ter issued his proclamation as Sovenu^r convening tie eo.^^^^^^^^^^^ 
extraordinary sessh)n on the lUh of May, 18.4, and that, at the tii e ot 
Sm U said proclamation, a Jud;,ment of ouster ^^f ^>^f ".^j'^^;;; ,^f ^ ^^ 
said Baxter as oovernor, by the circuit court ot l'^^^'^;^'^' V^""^';, ,^ 
ruse iM din- therein, Nvierein Joseph lirooks was plaintiff, and Kbsha 
^^er e&ant ; thk said Judguient had neither been appea ed tro.n^ 
bv s id Baxter, n. r had it been superseded; that, n teen memPers ol he 
honsrim /brr'raeinbers ot the senate, that ^vere e ected in ^^ov^'^'^J^; 
ol87'>nd that were in the i^eneral assembly that adjourned on he 
25th o? Ap 1 1^''3, met at a place other than the capitol-budding the 
ns iilidace of meein^-,) and within the closed military lines o Eusha 
S^ x^^ vhm3 no man or men.ber of the general assembly' could en er 
w thou a pass from one of his military officers, on the 11th da> o Ma. , 
rs74 -in l thatsai(l fifteen members of the house and /ourmembers of 
Jit s^Mne here not being a quorum in either branch of the general 
/ssem ly instlml of sending for absent members and adjourning troin 
d 'v da\ as be constituth.n requires, admitted twenty-seven persons 
; tlu' 1 u 4 a.Hl ten in the senate, to till vacancies, that did no occ u^ 
Vdeah or resignation, " during a recess of the general ;f «^»; ^ '" ' J 
that had never been declared to exist l^y the general assembly ; and that at 
the t me the legislature Nvas convened in extraordinary session by L sha 
B X er there was a quorum of each house m existence, about whose 
Hoht to seats in the general assembly there was no question ; that, by 
Uil re oo'iit on o 'r.u/,....m persons as members in the house, and by 
:\^^ion oiten persons as membei. in tlu> senjUe ^:^^ 
entitled to seats, each house, on the 13th day ot Ma^ , Ibrt, deohucd itscit 
nv'vniiiy.ul and so notified Elisha Baxter. 

i"l ke he osition that a legislature thus constituted and orS-amze 
hail no^uithofity or power to legislate for the people ot Arkansas, and 
ttuit its everv act was a nullity. . . /• n^,^„ . 

ilie thirteenth section of article 5 of the constitution is as follows : 
'^ 1 imj^^ty of the members of each house shall constitute a quoiMim 
to tnvi s act business, but a smaller number may adjourn trom day to d . 
Ind compel the attendance of absent members, m such manner and 
under such penalties as each house may prescribe. 
Section 7 of the same article is as follows : 
u ThcMnembers composing the senate shall be twenty-six, and of the 

^XmtMn?wni"r!:infhStr^aUesiburte a quorum in 

^vm^^ adjourn from day to day, ^nd compel tlje •'^tteiulance ot 
absermembers, and do not therefore constitute a duly organized s- 
^te c-u, ble of transactuig any business whatever, save such as is meii- 
nonXi the constitution: and as may be incident thereto m the process 

''TT^ow'ef conferred upon a less number than a quorum of either 



19 

house is, not to admit new members or pass upon their eleefion, qualifica- 
tion, and return, but is to adjouru ''froui day to day," aud compel tlie 
attendance of "absent meuibers." 

A less number than a le.2:al quorum cannot transact business, or au- 
thorize the swearing- in o£ new members. 

The admission of " new members" certainly comes under the head of 
" transacting- business." If it does, then there mnst be a quorum present, 
for the constitution declares that a majorifij of the members of each 
house shall constitute a quorum to "transact business." Suppose, for 
the sake of illustration, that the legislature of this State had adjourued 
to meet on the 11th of May, instead of being convened in extraordinary 
session, aud that, by some nnforeseeu accident, tifty republican members 
of the house failed to reach the capital on the day fixed for the assem- 
bling of the legislature, or that armed sentries prevented them froui 
participating in the exercise of their olficial duties, and that fifteen or 
twenty democrats in the house, (who were members,) iu the absence of 
the other fitly members, should recognize fifty of their political friends 
as members of the house, and swear them in as such, and elect new 
officers aud declare themselves "the house of representatives;" wonld 
it be contended that a house thns organized was the true house of rep- 
resentatives ? Why not ? Would not your answer be that the fifteen 
or twenty democrats, although members of the house, did not constitute 
a quorum ; that they were members of an organized house, and that less 
than a quorum could not pass upon the election-returns aud qualification 
of " new members." 

Suppose, again, that, during the sitting of the legislature, a new mem- 
ber had been elected to fill a vacancy in the senate, and that for some 
reason there was not a quorum present on the morning a new member 
appeared aud presented his certificate of election ; would less than a 
quorum of the senate undertaken to have admitted him to a seat! I 
think not. 

Gushing, in his Law and Practice of Legislative Assemblies, (sec. 817,) 
says : " A message from one house to the other cannot be received by the 
house to which it is sent, nor can any answer to a message be received by 
the house by which it is sent unless a quorum is present." Is the re- 
ceiving a message from the clerk of the house that a bill has passed 
that branch of the general assembly, any less the " transaction of busi- 
ness," than the admitting, or passing upon the election, qualification, 
and return of a member ? If one comes under the head of " transacting 
business," does not the other ? A departure from the rule, that less 
than a quorum of a once legally organized house may pass upon the 
election, return, and qualification of persons claiming seats, establishes 
a precedent whereby a minority party may change the political com- 
plexion of a branch of the general assembly, if at any time during the 
sessions there should happen to be less than a quorum present. 

It may be said that the twenty-seven persons who wer© admitted to 
seats in the house of representatives, and the ten persons admitte<l to 
seats iu the senate, to fill vacancies that had not been declared by 
either branch ot the general assembly, and that did not occur from 
death or resignation, between the 25th of April (the time the legislature 
adjourued) and the meeting of the legislature in May of 1874, were 
legally elected as members thereof. Let us see if this be true. What 
are the facts iu relation to this election ? The facts are that at the time 
the legislature adjourned there was not a single vacancy iu either house, 
and the proclamation of Elisha Baxter shows that but six vacancies 
occurred by either death or resignation during the recess ; yet he ordered 



20 



elections to be held to iill forUj-four vacancies. The reason «^s S m b> 
Eisha Baxter for orderin- elections for the election ot thirtN-eij^ht 
ot^^.e uiem^ ers of the legislature is, as you will see by reierence to Ins 
e-mr"^^ that the members elected in 18712 had either "rem.ned 
umird s ict," or had been -apimnted to oflii.e," other than such as 
a mem lei ot the' general assembly can hold. The question raised by 
'thii stau! of factsls, " Is the governor authorized, by the laws and con- 
s in.t 1 of this State, to detern.ine rchen and .r/../Aer a member ot t e 
ie. s u'c has 'removed from his .listrict,' or vacated his seat by rex^en- 
ing an appointment to ollice incompatible with the constitution ot the 

The'oeneral rule, as I have already stated, in regard to the construc- 
tion of -v State constitution is, that it is a UmiUaion upon the powers o 
t e legh^lative department, and a grant to the executive and .,u< ic a 
de parttnei ts. This being true, neither the executive nor the .ludu.a 
e r^^n e^ can exerciseany authority or power except such as iscleailj 
o • , t( b the constitution or conferred by statutory enaetments. 
^ Sec on U of A tiLle V, which is headed ''Legislative ^epartmen^" 
is as t\ lows: " Each house shall choose its own oltu.ers (letermme the 
rule's of its proceedings, and judge of the election, <^uahJicaUon,:.n.\ re- 
turn of its own members," 

Section 3.'^ of the same article is as lollows: i • i ^. 

u'CgcMieral assembly shall regulate by law ^i/ «'/u>m, and in what 
manner, writs of election shall be issued to till vacancies which maj 
happen in either branch thereof." 

Section 34 of the same article is as lollows : 

"The general assembly may declare the cases in which any olhce 
shai?^be deen^d vacant. 'and ilso the manner of ^^^^^'^^ 
where no provision is made for that purpose by this const tution. 

Fiwrthe'e sections it appears, first, tliat each house ^^tbe judge of 
the dection, qualification, and return of its own -}-^^\^^^ 
the general assembly is (clothed with power o ^!'i'^^^t^^> l'}! ^.^^ 
•uidln what manner, writs of election shall be issued to hll vacancies 
wcbmav happen in either branch thereof; and third, the P^^ver le- 
cl re tlTe cases u which an office shall be deemed vacant, and the mau- 
ne^of mUng the sanie, except in cases otherwise provided by the con- 

'^ Tl.^e"c('>nstitution nowhere authorizes the governor, nor is there any 
stMt ite tl a I have been able to find, that authorizes hnn to deterin ne 
thni-nx office Is become vacant. Therefore, the words " except m the 
c-sesoln'rwle provided bv this constitution" have no retereiice to his 
^^i^^'Thi^ei^l^ses clearly indicate tbat the pow.r of^.^..;;.;^^ 
whether a vacancy exists, either in the general assembly, oi i>i <^'^ 
otOi^ deimr .mn r^f government, is not vested in the executive of tl e 
St^te, unless conferix^l on him by statute, which has not been done. In- 
deed, it may well be doubted whether it could be done. 

Sccf ion 10 of Article V is as follows : , , 

" lS,val^of seUtors and representatives from their respective dis- 
tricts shall be deemed a vacation of their otlice. 

Section 11 of the same article is as tollows : 

" Ko person holding any office under the United States or tins htare, 
or any county ofiice,T'Xc4'ting postmasters, notaru'S public, othceis ot 
th/dlt aid township olheers, shall be eligible to,or A«^^e a^^«^ , 
either bi ami of the general assembly, and all votes given tor an> such 

person shall be void." n {.ondi- 

I uuderstand this section to mean that all votes cast toi anj canai 



21 

date for election to tlie general assembly, who holds any office, at the 
time of being voted for, save those excepted, are void. I farther under- 
stand it to mean that a person elected a member of the general assem- 
bly shall not have a seat therein, if he holds any oftice other than those 
specifically excepted, The language of tlie constitution is not that the 
"appointment" to one of the prohibited offices shall create a vacancy, as 
it IS in the case of " removal from the district," but that no person hold- 
ing one of the prohil)ited offices shall have "« seat in either branch of 
the general assembly." The members of the legislature are, in my opin- 
ion, a general assembly only when they are convened in accordance 
with law, and in session. 

The object of prohibiting a member of the general assembly from hold- 
ing any of the prescribed offices, obviously was to guard against him 
hohling any position that might influence his action as a legislator. The 
duties of a legislator are not continuous, and if at the tini^e he is called 
u[)on f:o act as such, he is not of the proscribed class, I cannot see any 
objections to his holding his seat, notwithstanding he mav have been 
" appointed to oftice." But, be this as it may, one thing is verv clear ; 
and that is, it is no part of the duties of the }/overnor to deterinine the 
question, and order an election to fill vacancies where none have been 
declared. We have already seen that the general asserablv is clothed 
Mith the exclusive power to regulate by whom and in what niauner writs 
of election shall be issued to fill vacancies in either branch of the legis- 
lature. The conference of power to designate by ivhom the writ of elec- 
tion shall be issued, shows, conclusively, that'the issuing of writs of 
election is not a duty devolving, by the constitution, on the chief execu- 
tive of the State. The legislature, under the power conferred, could 
have designated the secretary of state, or any other person, to have per- 
formed this duty, just as easily as it designated the governor. 

This shows that the duty of issuing writs of election, to fill vacancies, 
is not a prerogrativeof the governor, but a plain, simple, statutory duty, 
in the execution of which he has no more discretion than the sheriff of a 
county would have had, had he been charged with the duty. 

Now let us see what the statute says. Section 1, chapter SO, of Gould's 
Digest, p. 507, is as folows: 

"When any memberl elected to either house of the general assembly 
shall resign in the recess thereof] he shall address and transmit his res- 
ignation in writing to the governor, and Avhen any such member shall 
resign, (luring any se ssion, he shall address his resignation to the presi- 
ding officer of the house of which he is a member, which resignation 
shall be entered on the journals 5 in which case, and in all cases of va- 
cancy happening or being 'declared during any session of the general 
assembly, by death, expulsion, or otherwise, the presiding officer of the 
house in which such vacancy shall happen shall immediately notify the 
governor thereof, who shall immediately issue a writ of election to sup- 
ply such vacancy." 

Section 2 of said act is as follows: "'Whenever the governor sliall re- 
ceive any resignation, or notice of vacancy, or when he shall be sat- 
isfied of the death of any member of either house, during the recess 
thereof, he shall, without delay, issue a writ of election to supply such 
vacancy. 

Three things are observable in the section quoted: first, that the 
resignations made in vacation are to be addressed to the governor ; sec- 
ond, that the resignations made during the session, are to be made to 
the presiding officer of the house of which the person is a member; and 
third, that these sections contemplate, except in case of death or resig- 



22 

nation diirntfi ihc recess of ilic general as.souhli/, tliat eacb house, 
ichen the hijisUiinre is in session, sliall declare the eases iu which va- 
cancies exist, uliether they arise from ''death, resignation, or otherwise." 
There are only two cases where the governor is authoiized to issue a 
Avrit of election to till a va(!ancy on his own motion. One is wliere a 
vacancy occurs by resignation <lurin<^ a recess of the 1e(/isl((ture ; tlie 
other is when he shall be satisfied ot the death of a member dnrinfj a 
recess thereof. It is true that the second section authorizes him to issue 
a writ ofele(;tioii on "noticeof vacancy,'" but the "notice of vacancy " there 
referred to relates to the "notice of vacan(;y" referred to in the first sec- 
tion, and which the ])residin<>' otlicers of each house may have commu- 
nicated to him. liaxter issued writs of election in two cases to fill 
vacancies occasioned l)y "removal from the district," and forty-two writs 
of election to fill vacan(nes arising I'rom members of the general assem- 
bly having been "appointed to oftices" other than those the constitution 
lierujits a member of the legislature to hold; he did this on his own 
motion, and this was done without receiving notice of the existence of 
any vacancies in either house "yro?H the presidiny officers thereof .''^ This 
clearly is beyond the scope of his authority and the statutes. It would 
be a dangerous power to place in the hands of any man, especially the 
chief executive oflicer of the tState, to determine or declare vacancies in 
the general assend)ly. 

Mere " ajypointment to ofli(^e " is not a ground of disqualification to sit 
as a member of the general assembly. It is the holdin<i a forbidden 
office, that works disqualification, and the question of whether the 
office is being held, (not whether a member received an " ai>pointment,") 
is a matter for the determination of the house of whi(;h he is a member, 
and not for the governor. Upon this question, it being a legislative 
and not a judicial deternjination, there are no adjudicated cases to be 
found in the books of the i)rofession. The only two cases that I have 
seen that have any bearing on the question, are to be found in 17 Serg. 
and Eawle, (Pa.,) 219, and Brightley's Election Cases, 640. 

The oidy use which can be made of these cases is that they are pre- 
cedents to show that the question of holding an office inhibited by the 
constitution, is a matter for the determination of the house of which he 
is a mcinher, and that until it has adjudicated and declared a vacancy, 
that none exists, and if none exists, it must be i)atent to all, that the 
governor, under the law regulating the issuing of writs of election, is 
not authorized to order elections to fill vacancies that mag or mag not he 
declared. But iu order to remove ail doubts on this subject, let us ])ut 
the question so there can no longer be any dodging it, and this uiay be 
done by asking if the power of determining whether a vacancy existed 
con Id he conferred upon the governor, trrw hg an act of the legislature? 
That it is not conferred by the constitution we have seen, because the 
constitution says, "Each house shall be the Judge of the election, qualifi- 
cation, and return of its own members." That it is not ex necessitate an 
executive duty, we have also seen ; that the holding oian inhibited office 
is a thing that goes to the disqualification of a member the constitution 
declares. Under this state of facts, let us see if the legislature could 
confer the power on a governor, even if it were so disposed, to deter- 
mine whether a member had vacated his office by being "appointed" 
to another. I say it could not. 

By the constitution the sole power of Judging of the election, qual- 
ification, and return of a member, is conferred on "each house." The 
ride in relation to a conference of ])ower is, that it cannot be delegat- 
ed unless the authority delegating the power has so declared. The 



23 

power to pass laws, or tlie pov.er to allow a statute to become a law, 
subject to the approval ot the people, has time and time again been de- 
cided coidd not be done. The anlhority to issue writs of election mny 
be delegated because the constitution so declares. What is the decla- 
ration that a vacancy exists in either house, but tlie declaration and 
passing upon the (liHqualrftcdtion of a member f Is not the determination 
that a member of the legislature lias accepted an office, that disqualifies 
him, a passing upon his disiinalifimtiofis f Does not the constitution 
say that "each house" must do this! If it does, what implication does 
it raise ? Would not the exercise of such a power be an exercise of a 
power lodged with each house of the legislative dei)artment ? Does not 
the constitution say that "no person belonging to one department shall 
exercise the power properly belonging to another?" Does the governor 
belong to the legislative department'? I do not say that the act!ei)tance 
of a prohibited office does not disqualify one, who had been a meiiiber of 
the legislature, from thereafter acting as a member of the general as- 
sembly. This, I say, I do not deny. " But I do deny that the governor 
was, is, or can be, clothed with power to declare a vacancy in either 
branch of the general assembly and order an election to fill the same. 

The fact of disqualification may be known to every man, w^oman, and 
child in the State, but until it luis been declared by a tribunal that is 
authorized to ascertain and declare the fact, it does not exist. 

A sheriff may have seen a man commit a most atrocious and wanton 
murder. He may be perfectly confident that when the court meets a 
jury would convict him, ami that the judge would sentence him to be 
hanged, but all this would not vearrant the sheriff in executing the 
murderer until his guilt had been declared in the manner [)rescribed by 
law. And so with the governor: he may have been satisfied in his own 
mind tiiat the persons whose seats he declared vacant had accepted 
offices that would disqualify them from serving as members of the gen- 
eral assenibly, but until tliis fact was determined and declared by the 
only tribunal authorized to make that declaration, he had no right or 
power to order au election. It may have been done with the best of 
motives, and with the belief that he had the power; but neither mofivefs 
nor heliif changes the fact that he did not have the 'poivcr to issue 'writs 
of election to till anticipated instead of real vacancies. 

The governor does not even pretend that any one of the persons ever 
accepted or entered upon the discharge of the duties of the otiice to 
which he says they were "appointed." If the governor can dis(jualify 
a member of the general assembly from acting as such, by mere " ap- 
pointment" to office, you have i)laced it within his powder to get rid of 
his political enemies in the legislature at all times. The question, not 
only of having received an " appointment," but of having accepted it, as 
well as having performed the other })rerequisites necessary to clothe one 
with the insignia of office, are questions that cannot be delegated to 
any other department of government. Au attempt was>^ made in the 
case of The People v. Mahaney, 13 Mich., to get the supreme court of 
Michigan to declare a law unconstitutional because three members of 
the legislature whose votes were necessary to the requisite majority, in 
point "of fact, were not entitled to seats. In response to the demand. 
Judge Cooley said : 

"The general judicial power of the State upon the courts and officers 
specifiedis conferred by the constitution, and there are other powers of 
a judicial nature, which, by the same instrument, are expressly con- 
ferred upon other bodies or' officers, and among them is the power to 
judge of the election, qualification, and returns of members of the legis- 



24 

latnro. Tlio tiTins employed clearly show that each house, in decidinji-, 
acts in a judicial capacity, and tliere is no clause in the constitution 
which empowers this or any other court to review tiicir action. * * 
The (lucstion of the lcj;al electi(Ui of a member is usiuilly a question 
compounded of law and fa(;t, and the house must necessarily i)ass ui)on 
both. * * * It is sufticient for us to say that the constitution 
has not conferred u])on us tliis Jurisdiction ; we leave it where it has 
been left by the fundamental law of the State." 

It appears perfectly plain to me that if a court could not pass upon 
the election, returns, and qualifications of a member of the legislature, 
that a governor cannot. I ex])ect our friends on the other side will 
contend that a body of men callinj^- themselves a lej^islature, can pass 
u])on their own qualifications, and that no other tribunal can review their 
finding. So far as /State authoi'ity is concerned, the statement is abso- 
lutely true ; but so far as United States authority is concerned, it is not 
true. It may be asked if Congress shall hear ami determine election 
contests between mend)ers of the legislature of a State ? My answer 
is, that Congress has no such power; but it has the power to determine 
which of two bodies iti the Icgishiture of a State, or whether a body of 
nuMi acting as such are what they pretend to be. Without this power, 
how is (Jongress to act in the event a legislature should ask the guar- 
antee given by section four of article four of the Constitution of the 
United States, to protect the State against domestic violence";? 

But a short time since there were tv.o bodies of men in the State of 
Alabama, each claiming to be the general assembly of that State. Sup- 
pose one of them had aj)pealed for aid to sup{)ress an insurrection against 
the State government of Alabama? Will it be contended that in su(!h 
case Congress could not, before taking action on the api)lication to 
enforce the guarantee, determine for its own guidance whetlier the per- 
sons (ilaiming to be elected, and claiming to constitute the general 
assembly of that State, were in fact duly and legally chosen by the 
peoi>le, or whether they were mere pretenders 1 

AVhy, sirs, a mere statement of the question eliminates its absurdity. 
The guarantee of the constitution can only be invoked by the legisla- 
ture of a State, or by its executive when the legislature cannot be con- 
vened ; and to deny that Congress cannot determine in such a case, 
which of two bodies claiming to be a legislature, or whether a body of 
men claiming to be a legislature are such ; or which of two persons 
claiming to be the governor of the State, is in fact what they rei)resent 
themselves to be, is to render nugatory a provision of the Constitution 
of the United States. 

The evich'uce in this case shows clearly and distinctly that there was 
not a quorum of the legislature present, and that there was a legal 
quorum in existence at the time of the pretended organization. The 
organization of the legislature is not a thing the law contenq)lates 
should take i)lace every time it is convened. Its members are elected 
for two and four years, aiul when on(!e organized that organization 
stands for two years. Now, the legislature that elected Baxter attem[)ted 
to convene in extraordinary session; was an organized body at the date 
of its adjournment. He called it together, and because some of the 
members did not suit his purposes he kept them out at the point of the 
bayonet. Because he kept them out he could not get a quorum ; but a 
legislature was necessary, and a legislature he must have. If the absent 
members were admitted to seats they would not do his bidding. Here 
was an emergency, ami a man was found equal to it. In looking over 
the election-law lie found the followinu' section: 



25 

"Sec. 54 It sliall be the duty of the secretary of state on the j^/n^if day 
of each regular session of the general assembly to lay before each house 
a; list of the members elected agreeably to the returns." 

Under the law of Arkansas each house of the general assembly is 
organized upou the roll furnished by the secretary of state, and the 
members have no other credentials. The authority conferred by the 
section cited, as will be observed, is conferred on the secretary of state, 
and on the first day of the regular sessio7i. This is no authority to any 
one to make out a roll at the beginning of an extrao r dinar g session. On 
the roll submitted were the uames of forty persons, and tirenty-si.v of 
them, in the house of representatives, voted for the bill calling a con- 
stitutional convention. Attached to this roll is the following certificate : 

" To the speaker of the house of reiyresentatives : 

" I herewith transmit a true and correct list of the members of the 
legislature elected to the lower house of the legislature at a special 
election held on the 4th of jSTovember, 1873, as appears/ro?» /^/jereiwnts 
on Me in my office. 

"JAMES M. JOHNSON, 

" jSecretary of State. 
" By A. H. GARLAND, 

" Deiruty Secretary of State.''' 

You will recollect that I called this man to the witness-stand and 
exhibited to him a copy of this pa[)er and asked him if he furnished 
the list and certificate to the house of representatives. His reply was 
that he did. I then asked him if, at the time of making that certificate 
and furnishing the roll, he was in possession of any of the records of the 
office of secretary of state. His answer w^as, " None at all." I then 
asked him it he had the returns from the election officers. To this ques- 
tion he responded by saying, "No, sir; I had uo records at all in rela- 
tion to the election of these men." 

Without a legislature a constitutional convention could not be called. 
x\ll that was necessary was to make a roll and send it to the fifteen 
democrats inside of Baxter's military lines, aud the work was accom- 
plished. 

Without ever having seen an election-return. Garland made out a roll 
on which he says forty persons w^ere elected as members of the legisla- 
ture, according to the returns on file in his office^ and when interrogated 
about returns he says he did not have any. By the act described, Gar- 
land created a legislature and paved his w\ay to the gubernatorial chair, 
where he sits to-day. Who will say after this that virtue hath not its 
own reward "? 

Before leaving this subject I desire to call your attention to one fact 
in connection with the evidence, and that is that there is no proof that 
any one of the persons that Elisha Baxter ajypointed to office ever ac- 
cepted the same or entered u[)on the discharge of the diUies thereof. 
Under the provisions of the Constitution of the United States the gov- 
ernor of the State is authorized to issue writs of election to fill vacancies 
happening in the House of Bepresentatives. Suppose that during the 
term ot Andrew Johnson he had aiipointed all the leading republicans 
that w^ere obnoxious to him to some office incompatible with that of a 
member of the House, and suppose the governor of the State, upon 
public rumor of such an appointment, had ordered an election to fill a sup- 
posed vacancy, when the person appointed had \\G\l\\ex accepted the s.ime 
nor entered upou the discharge of the duties of the office to which he was 



26 

appointed, and suppose the person elected to fill the supposed vacancj', 
to.iivtlier witli otluTs similarly chosen, at the time lixed for the meeting 
ot Coniiifss should have come here, and Andrew Johnson had sur- 
rounded the (\ii»itol with the Army of the United States, and woidd noj 
let liny of the nuMubers of ('onu'iess, save such as were liis ])olitieal 
friends, within the Cajtitol building, and that the persons elected under 
the circumstances 1 have indicated had met with a few members of the 
old Congress and organized a new House of liepieseutatives and a neio 
Senate, with new officers from the highest to the lowest, and that the 
Congress thus constituted should pass a bill submitting the question of 
calling a convention of the people to frame a new Constitution, by a 
direct vote of the peojile of the United States, and in the same bill pro- 
vide that the officers to canvass the vote shonld be chosen by the revo- 
lutionary body, and that the ofificers thus chosen should have the ap- 
pointment of every Judge of election and election oflicer throughout the 
United States, for tlie holding and dechiring the result of said election, 
and that Aiulrew Johnson, in aid of that revolutionary movement, placed 
the District of Columbia under martial law, and kept it there during 
said ele(;ti()n and the session of the convention, aiul that the Congress 
of his own creation had ])assed a law first providing that all oflicers, 
upon the i)assage of articles of imi)eaclrinent by the House, should be 
suspended from the exercise of tlieir functions, and authoiizing the 
President to appoint other persons to act during the i)eriod of suspen- 
sion ; and that within a day or two thereafter every officer obnoxious to 
his aiUninistratiou, not only in the executive, but in the judicial dei)art- 
Uicnts, should be impeached by the House for an act that, under no 
state of case, was an impeachable offense; and when the chairman of 
the committee reporting the articles stated publicly, on the floor of the 
House, before the vote was taken, that he had not examined a single 
\Nitness in su])port of any one of the charges, and that Congress, fear- 
ing even the jndges of Johnson's own ai)polntment, should pass a law 
inhibiting the opening of any court of the Ujiited States for a period of 
seven months, for the purpose of j^rc venting any adjndi(;ation or deter- 
mination of the legality and validity of the proceedings which led to 
the calling of the convention ; and that after the election the commis- 
sioners should declare that a majority of the votes were cast for a con- 
vention, and that certain persons were elected delegates thereto, and 
the delegates should frame a constitution, and in the ordinance submit- 
ting it to a vote of the peoi)le should [)rovide for three commissioners of 
their own selection to canvass the vote and declare the result on its 
adoption, and who were elected to ottices thereunder, and conferring on 
these three commissioners the selection of every election-officer, and at 
the same time making no provision for a contest of the vote, nor a tri- 
bunal to hear and determine the legality thereof, and that these com- 
missioners should declare the same ratified, and that Aiulrew Johnson, 
on the declaration of who was elected President, should have turned 
the office over to Jefferson Davis or Jtobert Toombs; the question I de- 
sire to ask is, what words you would find to express your indignation at 
such violence and disregard of law ? 

Ail that is hero supposed in this case has actually happened in Ar- 
kansas, and you will be asked to sustain it and thereby make a prece- 
dent, declaring that sucli action is legal, or that it is revolutionary. 

In exanuning the make-up of the legislature, you have a right to go 
into the details of its election. The resolution under which this com- 
mittee is appointed confers full and ample authority upon you to make 
the inquiry. 



27 

" Tbe validity of an electiou depends upon its being held and con- 
ducted at the proper time and place, and in the manner provided by law." 
^atterlee v. San Francisco, (23 Gal., 320.) 

I shall not trespass upon your time in citing authorities, or in ad- 
ducing arguments, to convince you that an election held to till n vacancy 
when no vacancy exists, confers no authority upou a person elected at 
such an election. The books of the profession are full of cases upon 
this point, and are no doubt familiar to all of you. 

I think I have ali-eady shown you that the governor of Arkansas is 
not clothed with the power, under the constitution and laws of Arkan- 
sas, to determine ivlten a vacancy exists in the legislature, other than 
those happening bj' death or resignation during the recess of the .same. 
But suppose for argument's sake that I am wrong in this, we still have 
to ascertain whether the election was held at the time, mamier, and 
place provided by law. Upou this subject there can be no diversity of 
opinion. The ballot in the American form of government is the instru- 
ment by which the voice of the people is heard and ascertained. It is 
hedged around with certain safeguards, and around it is thrown the 
protection of the law. We hear men talk of the " will of the people," 
as though the clamor of the mob and the cry of revolutionists was en- 
titled to respect. The people of this country are n corporate peoi)le, and 
they can only speak, legally, at the time and in the manner agreed upon. 

It ai)pears from the evidence that at the time and in the manner 
prescribed by law, previous to the ISTovember election of 1872, registrars 
were appointed, and that said registrars made a registration of the legal 
electors of said State of Arkansas, and that neither said board, nor the 
persons composing the same, have died or resigned, buc are yet resi- 
dents and citizens of said State, except in a few isolated instances, and 
these occurred before the adjournment of the Senate on the 25th of 
April, 1873 ; that afterwards, to wit, on the 18th day of September, 
1873, the f/overnor of said State ordered a registration of the legal elect- 
ors of the State, and appointed a new board of registration, composed^ 
of different persons than those who constituted the registration board of 
1872; that the persons so appointed by the governor in 1873, made a 
registration of the electors of said State, and that at the election held in 
ISTovember of 1873, to till vacancies in the general assembly, the persons 
registered as electors by the board of registration appointed by the 
governor in 1873 were allowed to vote, and that the election was held by 
persons appointed judges of election by the board so appointed by the 
governor in the year last named. 

Upon this state of facts, the question is, " Whether the appointment 
of registrars made by Baxter in 1873 was authorized by hiw!" 

Section one of the registration act (Sess. Acts of 1st sess., 1868) 
reads as follows: 

" That on or before the first day of August, 1868, and every two years 
thereafter, the governor shall, hy and with the advice and consent of the 
senate, appoint three loyal, competent, and discreet citizens in each 
county, who shall have resided at least six months in the county next 
preceding their appointment; said persons to be styled and called a 
board of registration." 

The second section of said act reads as follows: 

"The governor shall till any vacancy occurring in any of the appoint- 
ments made hy him, and may, in his discretion, remove any one so ap- 
pointed hy him for incompetency or other sulticient cause." 

The power of removal conferred by the second section of the registra- 



28 

tion act is limited to persons that the governor maij have appointed to 
Jill a vaeiDicii. 

The hm^^uage of the section is that he may "remove any one so 
appointed by /jiw." 

Tlie only case where the absolnte power of a{)pointment is given to 
the governor, alone, is to till a vacancy The api)()intment of registrars, 
in the iirst instance, is by the governor, by and icifk the advice and con- 
sent of the senate. The power of removal conferred by the second sec- 
tion is not broad enongh, nor do I think it was the design of the same, 
to authorize the removal of persons that had been appointed " by and 
with the consent of the senate." 

The twenty-third section of the act authorizes the governor, "where, 
for any reason, \\ proper registration has not been made previous to any 
general election, to cause a new registration to be made lor the purpose 
of any munici[)al, State, or county eIe(;tion." This section contains no 
conference of i)o\ver to reniore any one. The i)Ower conferred is to 
cause a " new registration ■' to be made. 

The registrars appointed in 1872 were, under the law,, appointed for 
two years, and, if they did not resign or abandon the oltice, the second 
section confers no ])ower to remove any one save such as tlie governor 
had ai>pointed to Jill iKicancies. The appointment of other persons to 
make the registration amounted to a removal of the old registrars (/"the 
act was authorized by law ; if it was not, it was a usurpation of power, 
and all acts had, done, and performed thereunder are absolutely void. 
The power to_/?7/ a rac<f»c!^ does not include the i)ower to create a va- 
cancy. In the case of Keenan v. Ferry, (24 Texas, 257,) it was held that 
"where the power of appointment is exclusively vested in any tribunal 
or department of government, and the office is held at the discretion of 
the tribunal, the mere ap))ointment of a successor is, })er se, a removal of 
the prior incumbent." The rule here laid down is correct, if the poa-er 
to remove was contained in the act authorizing the appointment, as was 
the fact in the case cited. 

In the case of Field v. The Feople, (12 Scam., 109,) it was held that, 
" where the power of ai)i)ointment was conjointly vested in the governor 
and senate, that the governor alone could not remove. In the case of 
DubuG V. Voss, (19 La. An.,) the court said, " The power to remove is not 
incident to the power to appoint.'''' The power of the governor even to 
fill vacancies, in my oi)inion, is restricted. lu the case of The Feople 
V. Ewing, (Breese, 08,) it was lield that " the governor cannot make an 
appointment in the recess of the general assembly, unless the vacancy 
occurred since the adjournment of that body." 

This, although we have no constitutional provision or statute on the 
subject, I believe, from analogy and practice, to be the law^ of Arkansas. 
If it is, Baxter was restricted, in the ai)p()intment of registrars, to the 
filling of such vacancies as occurred between the 25th of A})ril, 1873, 
and the daj' of election, and these appointments would hold good only 
until the next meeting of the legislature, which was in May of 1871, 
unless confirmed by the senate. 

If I am right in this view of the subject, it follows that no legal elec- 
tion could be held at the November election of 187.3, because the regis- 
tration was not made in accordance with law. But behind this is another 
question, and it is, 

" Whether the governor was authorized by law to order a registration 
in 1873 for the registration of the class of persons referred to in his proc- 
lamation f ' 

The power to order a registration is derived from the statute. A 



29 

statutory power must be strictly pursued by executive officers. The 
twenty-third sectiou of the registration act delares that " if for any 
reason a proper registration lias not been made previous to any general 
election, the governor, when uotilied of the fact, shall cause a new regis- 
tration to be made." It is a well-settled principle of the law that where 
a special and exclusive authority is delegated to a tribunal or officer of 
the government, and no mode of revising his action or decision by ai)peal 
or otherwise is provided by law, his action and determination are final 
and conclusive of the matter submitted to his decision. Keenan v. 
Perry, 24 Texas, 253 ; Dnhiic v. Boss, 19 La. An., 211 ; Martin v. Mott, 
Wheat., 29. 

Under this rule all question as to notice, and the sufficiency of the 
reasons, is wholly within the discretion of the governor, subject to such 
limitations only as the law may surround him with. The ground on 
which, or rather the reason he assigns for ordering a new registra- 
tion, is, that " a registration of the legal voters has not been made since 
the adoption and ratification of the amenduient to the constitution 
known as Article VIII." I have said that the authority to order a new 
registration was a statutory power, and that such power must be pur 
sued strictly by executive officers. The i)ower to order a new registra- 
tion depends solely upon whether " a proper registration" was made 
" previous to a general election." 

If a proper registration (and by this is meant such a registration as 
should have been made in the first instance) was made previous to a 
" general election," that registration must stand for two years. If there 
was not, then the governor may order a new one. The governor does 
not claim that a " proper registration" was not made of «?^ the legal 
electors of the State, of the counties named in his ]>roclaniatiou, previous 
to the '' general election " held in ISTovember of 1872. 

His proclamation says " a registration of the legal electors of the 
State has not been made since the adoption and ratification of the amend- 
ment to the constitution known as Article VIII." 

The question then is. Does the twenty- third section of the registra- 
tion act authorize the governor to order a registration, to place the 
names of persons on the registration-books wlio did not possess the qnali- 
fication of electors at the timethe registration was made " previous to the 
general election" in 1S72? 

I think not. The registration, when once uuide, is expected to stand 
for two years. It frequently happens that many persons who are 
not possessed of the requisite qualifications of an elector at the time 
the registration is being made, on account of want of residence 
and non-age, outgrow, within a very short time after the election, 
the disqualificatious that existed when the law fixed the time for 
ascertaining- the qualifications of electors. If, after they have outgrown 
their disabilities, a special election should be ordered, these persons 
could not vote, because the law makes no provision by, which their 
names may be placed on the registration-books. Registration, under the 
constitution and laws of this State, is a prereqnlsite to voting. It may 
be a hardship on those persons who may have come into the possession 
of the requisite qualifications since the registration to deny them the 
privilege of electors at special elections being held after their disabili- 
ties no longer exist. If it is, it is one the law imposes, and the remedy 
is by legislation. Would the governor have the power to order a regis- 
tration preceding a special election for the purpose of giving the per- 
sons who had become of age since the " previous registration " an oppor- 
tunity to vote ? Would he have the power to order a registration to 



30 

Q'ivo flic persons nn op]iortniiity to vote at a sponial election who, by 
residence, had accpiired tiie riglit to be electors, but who did not 
possess tliis right at the time the general election was to be held? I think 
not ? 

An elector, not only at a general but at a special election, must have 
his riglits ascertained iinmediatel.y preceding a general election. 

The fact that a considerable nnniber of persons, by the adoption of 
the ainendnient to the constitution known as Article VIII, became 
entitled to tlu^ ballot who were not entitled to it prior to the November 
election of 1872, does not go to establish the fact that " a i)roper regis- 
tration" was not made preceding the general election." In fact, the 
l)roclaitmtion of the governor clearly and distinctly shows that the ob- 
ject in making the registration was to register a class of persons to vote 
at a special election that were not entitled to the use of the ballot at the time 
the registration was made in 1872. 

The law does not autliorize any such registration. The governor had 
a right to order a new registration without assigning any cause or 
reason therefor ; but in the making of that registration tlui persons 
registered would have been examined, or shoulcl have been examined, 
with a view to ascertaining whether the persons applying therefor were 
possessed of the proper qualitications, not at the time the " neio registra- 
tion^^ was being made, but whether the persons ai)])lyiug had the proper 
qualifications of electors at the time '' a pro[)er registration " slioiild have 
been made, to wit, before the general election. 

No one can examine the registration law of Arkansas and tind any 
authority whatever for the placing of any name on the registration-book 
that did not possess the qualitications of au elector at the ^i»*t' the regis- 
tration was being made, previous to "a" general election, nor can he 
find any authority for allowing a person to vote at a special election that 
did not possess all the qualifications of an elector at the general election 
immediatelij preceding it. The right to vote at a special election, under 
the laws of this State, depends solely upon the right to vote at n general 
election. 

Under a statute in Missouri, the law requires the registration-book ^o 
be opened fifteen days before a special election, for the purpose of add- 
ing the names of such i)ersons to the registry " as have become qualified 
voters after the closing of the registration made preceding the general 
election." Breckenridge, who had been a Federal soldier during the 
war, and who possessed all the qualifications of an elector at the tiuie the 
registration was made preceding the general election, and who was 
regularly registered at said registiation, but the same having been 
declared illegal, and the entire registration of the county having been 
set aside, he applied to be registered before a "special election." In 
disposing of the application for mandamus, the supreme court of Mis- 
souri said, {State v. Cool; 41 Mo., 5i>7:) " It seems that the law makes no 
ju-ovisiou, in case where the books are destroyed, or they have been 
rendered ineffective for any reason, for making the registration anew. 
No UGRv registration can be nuule until the next biennial ele(;tion. There 
is undoubtedly a palpable defect in the law, a clear eausus omissus ; but 
this court cannot be appealed to to amend and perfect laws by judicial 
legislation. 

"There is no provision made for registering any persons except such 
as have qualified since the closing of the last general registry. A per- 
son therefore who was duly entitled to registration, and failed from any 
cause to be registered, cannot a^ ail himself of the privilege when the 
lists are being completed in view of a special election." 



31 

It is a defect in the law, that ])ersons in this State who may have become 
possessed of the requisite qnalitications of aji ek^ctor since the rej^istra- 
tion was made, cannot participate in the special elections happening after 
they are qoalitied ; but tliis defect cannot be remedied bj' the governor 
any more than it can by the courts. It is clear to my mind that no per- 
son can be permitted to register or vote at any election, no matter how 
many registrations may be ordered, that did not possess tlie requisite 
qualiticatious of an elector at the time '•'•a proper registration'''' should 
have been made. 

The next question for consideration is whether the boards of registra- 
tion appointed by Elisha Baxter, in 1873, were clothed with power to re- 
move the old judges of election and appoint others in their places ; and 
whether an election held by judges appointed by registrars whose own 
a[)pointments were void could hold a legal election to fill vacancies that 
had not been declared to exist, by the only power that could rightfully 
determine the question. 

I have already stated that Baxter had no authority under the laws of 
this State to appoint registrars, save to fill such vacancies as occurred 
since the 25th of April, 1873, the time of the adjournment of the legis- 
lature. If vacancies existed prior to that date, it was his duty under 
the law fo have sent the nominations to the senate. In those counties 
where there was a board of registration in existence, he had no power 
to appoint another, and if the boards thus illegally appointed attem[)ted 
to or did appoint persons as judges of election in the different precincts 
of their respective counties, the act was an absolute nullity. The first 
section of the election act is as follows : (Sess. Acts, first sess. 1868, p. 
315.) 

"AH general elections for the election of any executive or judicial offi- 
cers, members of the general assembly, &c., shall bo held on the Tuesday 
next after the tirst Monday in November, and shall be biennial, com- 
mencing at the general election in 18G8." 

Section 4 of the same act is as follows : 

"The board of registration for each county, immediately before such 
election, (the general election,) shall appoint three discreet persons in 
each election district, having the qualifications of electors, to act as 
judges of election within the election district," &c. 

Section 6 of said act is as follows : 

"The judges of election apjiointed as aforesaid shall continue to be 
the judges of all elections within their respective districts until the next 
general election.*' 

The time of appointing the judges of election is immediately before 
" such election." The words " such election " refer to the general elec- 
tion spoken of in the first section, and not to a special election to fill va- 
cancies. Once appointed, the law says they shall be judges of all elec- 
tions within their respective districts until the next general election, 
not until the next special election. It is a well-established .principle of 
law, and so generally understood that it.is scarcely necessary to cite au- 
th.>rities in support of the proposition, that where a power of appoint- 
ment is conferred on a board and it is once exercised, at the time desig' 
nated by law, that the board cannot revoke its action after once having 
made an appointment. It mighr be conceded, for the sake of argument, 
that Governor Baxter had the powder to appoint new boards of registra- 
tion, but even this new board could not exercise the power of appoint- 
ing judges of election to hold the election in 1873, because the law says 
the appointment shall be made immediatelv i)receding a general election, 
and that, when so appointed, they " shall be the judges of all elections 



32 

held within tlioir respective districts until tlio noxt genornl oloction.-' 
Tlie election in 1873 was not a (/oteral election, it was a special election, 
and tlieie is no law authorizing' the board of registration to a|)|)oi!it 
judj^es of election at any other time than '• immediately before a general 
election." This appointment having been nnule, the board of registra- 
tion, as an appointing board, was functus officio. A failure on the i)art 
of the board of registration that was ai)pointed in iSTii to appoint 
judges of election, would not have authorized the board api)ointed in 
1873 to have appointed others. The law itself says hoic the jiulges of 
election shall be chosen in the event of failure of the board of registra- 
tion to appoint at the time designated by law. It is as follows : 

" Section 7. if * * * the board of registratiou fails to appoint 
judges of election, or those a])pointe(l fail to act, * * * the voters 
when assembled may ai>i)oint the judges." 

The law nowhere i)rovides for the removal of a judge of election, but 
does ])rovide how another shall be selected, if he fails to act. It may 
be admitted that the i)ersons making the registration in 187."> were all 
legally appointed; and what follows!? Why, this: that they could not 
exercise other i)owers than hcloiujed to the Ixxird of re(jistration. Suppose 
tliere had beeu no change in the board, and that the registratiou nuule 
in 187o had been made by the registrars appointed in 1ST2, would the 
board of registratiou have beeu empowered to appoint new judges of 
election ? I answer, no, em[)hatically ; for the law says, if the ai)point- 
ment is made by the board, that it must be niade " before the general 
election," and if not done then, that the electors, ivhen assembled at the 
polls, shall unike the ai)pointment. 

It nniy be said that these things are technicalities. It is not true that 
they are technicalilies ; they are departures from law* and evidence of 
lawlessness. These acts evidence a total disregard of the law ; they not 
only evidence this, but the proof shows conclusively that he who was 
sworn to take care that the laws were faithfully executed, was the lirst 
to violate them. 

For the time being I will now leave these questions, and pass to one 
where the answer of "technicality" cannot be raised. Let us admit, for 
the argnuu'Ut, that there was no question as to tiie legality of the legis- 
lature [)assing the act calling a constitutional convention ; let us admit 
that the governor had the right to remove the registrars and appoint 
others in their places; let us admit that the registrars thus appointed 
had a perfe(;t right to register a class that were not entitled to registra- 
tion under the law^, and that they had a right to remove the old judges 
and appoint the new ; let us admit that every step in the election and 
elsewhere was regular, in every resi)ect, up to the time the legislatuie 
passed the act calling a convention, and tiiatthe legislature was clothed 
with power to provide for calling a constitutional convention. These 
things admitted, we are still confronted with another question, that will 
not down at the bidding of any man. 

Tiie (juestiou now arising is: 

" What effect did the marking of ballots have, if any, on the election, 
to determine whether a constitutional convention should be called, and 
upon the election of delegates, under the peculiar provisions of our con- 
stitution f 

In construing the constitution of a State, the object ought to be to 
ascertain the intent, uot only of the framers, but of the people, when it 
was adopted. 

Intent may as often be inferred and discovered by examining the 
amemlments nuide from time to time, as from any other source. The 



33 

constitntional convention of 1S68 passed an ordinance and appended it 
to the constitution, the fourth section of which is as follows: 

" The secrecy of the ballot shall be preserved inviolate. No judue, 
inspector, or other election ofticer shall inarlc or deface, or permit to he 
marl-ed or defaced, any ballot cast (at an election) at which he is acting, 
whereby may be ascertained the manner in which any elector voted." 

This section, I say, was apf)ended to the constitution of 1868, but is 
found in an ordinance of the convention. Many persons doubted whether 
this section of an ordinance was of the same force and effect as a provision 
of the constitution. Under the constitution of 1836, and that of 1804, 
elections were not necessarily by ballot, but viva voce. The eighth sec- 
tion of Article VI of the constitution of 1836 is as follows : 

''All general elections shall be viva voce, until otherwise directed by 
law." 

This same ])rovision was incorporated in the constitution of 1864, ver- 
batim et literatim. In 1846 (Gould's Digest, p. 470) the legislature, under 
the power conferred by the constitution, changed the mode of voting 
from that of viva voce to that of ballot. The section alluded to is as fol- 
lows : 

" Section 36. The mode of voting at all general and other elections 
authorized by the constitution and laws of this State shall be hj ballot.''' 

The forty-sixth section of the election law is as follows : 

" It shall be the duty of the clerks of all elections to register the 
names of each and all electors in the or<ler in which they may present 
their ticket, placing opposite each name its appro])riate number, and 
indorse on the ticket of such elector the corresponding number.'''' 

Ordinarily the word '^ballot" implies secrecy, but it may well be 
doubted whether, under the constitution of 1836 and the law passed 
thereunder, it did. 

The fact that voting prior to the act of 1846 was viva voce, discloses 
the fact that it was not against public policy to know how every man 
voted, and it may further be doubted whether the legislature, under 
the circumstances stated, was bound to attach any secrecy to the ballot. 
I think it was wholly within the discretion of the legislature at that 
time to determine whether the ballot should be clothed with secrecy, or 
whether it should not. 

But be this as it may, its determination is not necessary to a solution 
of the question asked. 

I have mentioned these facts to show the manner of voting prior to 
1868, and the ordinance of the convention to show an intention to de- 
])art froai the system tlien in vogue. The declaration that the secrecy 
of the ballot should be preserved inviolate, and that no judge, inspector, 
or other elective ofticer should mark or deface, or permit to be marked 
or defaced, any baHot cast at which he is acting, whereby may be ascer- 
tained the manner in which any elector voted, discloses unmistakably an 
intent that a ballot should not be marked or defaced, in a'l manner that 
would enable the judges of election, or any otiier person, to ascertain 
how an elector voted. I have said there were some doubts as to whether 
the ordinajice referred to had the force and eii'ect of a constitutional pro- 
vision. 

In an amendment made to the constitution, that was ratified in March 
of 1873, the following provision is found : 

Sec. 3, Art. 8. " In all elections by the peo!)le, the electors shall vote 
by ballot. Tlie secrecy of the ballot shall be preserved inviolate, and 
the general assembly shall provide suitable laws for that ])urpose." 

If, after declaring that all elections should be by " ballot," the fram- 
3 a 



34 

ci's of tliv constitution had sto]i])c(1, in view of the doubt cast on tlic ordi- 
nance, an<l rlie cnstoni prevailin.u" anterior to ISfJS, it inis^iit with some 
<h\<iiee of j)huisihilitv bt' couten<led that the l)allot referred to was the 
ballot in use before that time ; but the words, " the secrecy oi the ballot 
shall be i)reserved inviolate," following' the word " ballot," in the pre- 
ccdinj^- senten(;e, shows beyond all question that the veil of secrecy 
should never be removed therefrom for any purpose. 

I desire to call your attention specilieally to the following' secrion of 
the act providing;' for a convention to frame a new constitution : 

"Section 11. As the electors present themselves at the i>olls to vote, 
thejudiics shall i)ass u)»on theii' (jualilications, whereu])on the clerks of 
election shall rejiister their names on the ]»oll-b()oks, if ((ualilied, and 
such reii'istration by said clerks shall be a suflicient re,uistration in con- 
formity to the constitution of this istate, and then their votes shall be 
taken : Provided, no person shall vote outside or elsewhere than in the 
township, ward, or precinct in which he resides. The electors siiall be 
numbered and the number of each elector marked on his ballot, by one 
of the judges, when dejwsited." 

The question now arises, does the niarkin"' of a ballot deprive it of 
the sanctity of secrecy thrown around it by the constitution ; and if so, 
what is the result 't 

Chi<'f-Justice Denio, in the case of People v. Pease, {21 N. Y., 45,) uses 
the followiufi' lari,n'uai:e: 

" 1 have already alluded to the policy of the law providino; for a secret 
ballot. The right to vote in this manner lias usually been considered 
an important and valnable safeguard of the independence of the humble 
citi/en against tlie inlluence which wealth and station may be sup])0se«l 
to exercise. This object would be accon)i)lished but very imperfectly, 
if the privacy supposed to be secured was limited to the moment of de- 
])ositing the ballot. The spirit of the system requires that the elector 
should be secured then, and at all times thereafter, against reproach or 
animadversion, or any other prejudice, on account of having voted 
according to his own unbiased jiulgment; ami that security is made to 
consist in shutting uj) within the ])rivacy of his own luind all knowledge 
of the manner in which he has bestowed his suffrage." 

Judge Cooley, in his work on "Constitutiotuil Limitations," ( ) 

says : 

"The mode of voting in this country at all general elections is almost 
universally by ballot. The distinguishing feature of this mode of voting 
is, that every voter is thus enabled to secure and ju'eserve the most 
com})lete and inviolable secrecy in regard to the persons for whom he 
votes, and thus escape the intluences which, under the system of oral 
suffrages, may be brought to bear upon him, with a view to overbear 
and intimidate, and thus prevent the real expression of public senti- 
ment." 

] have quoted these authorities for the purpose of showing the object 
of the secret ballot, and the importance it is to the citizen at a time 
when i)artisan ])rejudice may be running at high tide. There are many 
instances where the law was silent as to whether the ballot was to be 
secret or not, where the courts have decided that an elector could not 
be compelled to diselose how or for whouj he voted. {People x. Pease, L'7 
N. Y., 81 : People v. Cicotf, 10 Mich., 2.S3.) 

The thirteenth section of the constitution of the State of Indiana 
(Art. "2) is as follows: 

"All elections by the people shall be by ballot." 



35 

Here, it will be seen, the kind of ballot, whether secret or otherwise, 
is Jiot stated as it is in the constitution of this State. 

Under the constitution of Indiana the le<iislature passed an election 
law. and among its provisions is this section : 

"It shall be the duty of the insi)ector of any election held in this 
State, on receiving- the ballot of any voter, to have the same numbered 
with figures on the outside or back thereof, to correspond with the num- 
ber placed opposite the name of each voter on the poll-lists kept by the 
clerks of said election." 

It will be seen that this section is substantially the same as that 
passed at the extraordinary session of the general assembly in May 
last, and which is in the act providing for a submission of the question 
to the people of the expediency of calling a constitutional convention. 
At an election held in that State in October of 1870, Williams de- 
manded of Stein, the inspector of election, that his ballot should not 
be numbered as directed by statute. Stein received the ballot and 
numbered it as he did all others. Thereupon Williams brought suit 
against Stein for " being damaged in his constitutional privileges and 
franchises." The rpiestion thus presented (a denmrrer being tiled) in- 
volved the constitutionality of the act. The demurrer was overruled, 
exception taken, and Stein refusing to answer over, the cause was sub- 
mitted to the court for trial. Judgment was rendered for the ])laintiff, 
and the cause was appealed to the supreme court ot the State. The 
only error assigned was the overruling of the demurrer. In disposing 
of the case, as thus ]>resented, the court said, {3S Ind., 89:) 

"I am not unmindful of the rule that all doubts are to be solved in 
favor of the constitutionality of legislative enactments. This rule is 
well established, and is founded in the highest wisdom. But my con- 
victions are clear that our constitution was intended to, and does, secure 
the absolute secrecy of the ballot, and that the act in question, which 
directs the numbering of tickets to correspond with the numbers opposite 
the names of the electors on the poll-lists, is in palpable contlict, not 
only with the spirit but with the substance of the constitutional pro- 
vision. Tins act was intended to, and does clearly, identify every man's 
ticket, and renders it easy to ascertain exactly how any particular per- 
son voted. 

"That secrecy which is esteemed by all authority to be essential to the 
free exercise of sutfrage, is as much violated by this law as it it had 
declared that the election should be viva voce. If the constitution 
secures to the voter in popular elections the protection and immunity of 
secrecy, there can be no doubt that section two of the act of 1809, which 
authorized the inspector to number ballots, is in contlict with it, aud 
void." 

Tested by the rule laid down in the case of Williams v. Stein, the 
eleventh section of the act, providing for a constitutional convention, is 
void. But, it may be saul that the decision in the case of "^ Williams v. 
Stein does not prove or establish the fact that the election held wa ; a 
nullity, or that it was void. It is true the court did not decide that the 
persons voted for at that election were not entitled to their o//?ce6'. This 
question was not before the court. But it did decide that a "law requir- 
ing ballots to be numbered was unconstitutional. This brings us to a 
consideration of the question whether an eleetion held under an uncim- 
stitutional law, confers the same power it would if the act were valid, 
and whether the parties damnified thereby have to submit to the exer- 
cise of power delegated to third persons in violation of all law, and 
whether the elector in such case is remitted to a personal action against 



36 

those who oxocnted tlie hnv lor an invasion of his constitutional priv- 
ileges and Irancliises ? 

The mere statement of the proposition shows its absurdity. In 
tne case of The People v. Churchy (0 Cal., 78,) the .supreme court of Cali- 
fornia held that an election held at a time not authorized by law, was 
void. Ordinarily, one would think there could be little difference be- 
tween an election held at a time not authorized by law, and one that 
was not held in the manner provided by law. Judge Crocker, in the 
case of Satterlee v. San Franci.sco, (23 Cal., 3120,) says: 

"The validity of an election does not depend on the eligibility of the 
candidates, lor if it did, it might be contended that an election would be 
invalid because an unsuccessful candidate was discpuilfied to hold the 
othce voted for. The validity of ;in election depends upon its being held 
and conducted at the [)roper time and place, in the manner, and by the 
persons and officers as lecpiired by law." 

The manner of holding elections is fixed by the constitution, and it 
says, first, it shall be by ballot, and second, that the secrecy of that bal- 
lot shall be preserved inviolate. 

Is an election held with any other ballot than the one prescribed by the 
constitution a legal election ? Is an election held under a law where it 
may be ascertained by reference to the tickets and the poll-books just 
how every man voted, such an election or such a ballot as the constitu- 
tion contemplates f 

In the case of McKune v. Wcller, (11 Cal., 49,) the supreme court of Cali- 
fornia said : 

" All the efficacy given to the act of casting a ballot is derived from 
the Unc-making poicer, and through legislative enactment." 

If it be true that a ballot receives its efficacy from the " law-making- 
power,'' does it not necessarily follow that an exercise thereof in viola- 
tion of the fundamental law cannot give it etlicacy ? The power to hold 
the constitutional convention is founded on the vote cast at the election. 
If the vote cast, and the ballot used, was one that the constitution 
iidiibited, then there was uo election, for au election can only be held 
with the ballot the constitution provides. 

What the supreme court of Indiana would have decided on quo war- 
ranto as to what rights, if any, were conferred by a marked ballot, at 
the election held in that State under the law the court declared was 
nnconstitutional, can only be a matter of conjecture; but as to what 
other C(mrts have decided undev a similar state of facts is well known. 
The question in the case of The Commonivealth v. Woelper, (3 Serg. »!!fc 
Kawle, 2!>,) was, whether a ballot, used at an election, that had a design 
thereon, by which it might be ascertained how certain persons voted, 
should be counted. 

Chief-Justice Tilgiunan, in disposing of the case, says: 

" The tickets in favor of those persons who succeeded in the election 
had on them the engraving of an eagle." 

The judge who tried the cause charged the jury that those tickets 
ought not to have been counted. # * * # * 

"This engraving might have several ill effects. In the first place, it 
might be perceived by the inspector, even when the ticket was folded. 
This knowledge might possibly intiuence him in receiving or rejecting 
the vote. But in the next place, it deprived those persons who did not 
vote the German tichets of that secrecy which the elei;tion by ballot ivas 
■intended to secure.'^ 

The ballot used in the case just cited had an eagle on it. The by- 
law governing' the election said, that if besides the names there are 



37 

otlier things on the ticket it vshall not be counted. Tiie court held tliat 
the placing a picture of an eagle on the ballot invalida^ted the ticket ; 
first, because the ballot was not such»a ticket as the law required, and 
second, because it had a tendency to destroy the secrecy wkieh electio)i 
hy haUot icas intended to secure. This being true the court would not 
allow the ballots thus marked to be counted. 

Apply the law as laid down in this case to the matter now before us, 
and what is the result"? 

It is that neither office nor power can be conferred by an illegal ballot. 

The marking the ballots destroyed the secrecy which the constitution 
guarantees. When that was destroyed the efficaci/ of the ballot was 
gone. 

The question of wha,t effect should be given to a vote that was taken 
in a manner at variance with the law arose in the case of Saint Joe & 
Denver City Railroad v. Buchanan Connty, (31) j\Io., 488.) 

There was a law authorizing the county court to make subscriptions 
to railroad enterprises, if a majority of the taxable inhabitants of the 
county voted therefor. 

Before the vote was taken, the State of Missouri adopted a new con- 
stitution, and continued "all statute laws now in force not inconsistent 
Avith the constitution, until they expire by their own limitation, or be 
amended or repealed by the general assembly.'' One of the provisions 
of the constitution was, that •" no county should loan its credit or become 
11 stockholder in any company or corporation, unless two-thirds of the 
qualified electors, at a regular or si)ecial election, should assent thereto." 

In disposing of the case .Judge Wagner saul : 

" The act of the general assembly, providing for taking the vote of the 
people of Buchanan County, and conliuing it to the majority ot taxable 
iiihabitants, is repugnant to the constitution. * * * xhe constitu- 
tion imposes no such restrictions, but opens the ballot to all who are 
qualified voters." 

A two-thirds vote was received in favor of the proposition at the 
election ; but how many were disqualified, by reason of the restriction to 
taxable inhabitants, does not appear. The eftbrt evidently was to con- 
form to the constitutional requirements, as to the qualification of voters, 
and also to carry out the act of the legislature by restricting the vote 
to those who are taxable inhabitants, or, in other words, to engraft the 
constitutional provision upon the enactment as an amendment. 

" We think this could not be done. Laws, therefore, which are inop- 
erative, on account of repugnancy to, or inconsistency with, tlie consti- 
tution, must be legislatively amended before they are capable of execu- 
tion." 

That the law providing for numbering the ballot, thereby destroying 
the secrecy thereof, is repugnant to, and inconsistent with, the consti- 
tution, I think has been clearly shown, and if it be true that all such 
laws must be amended before they are "cai)ableof executi"t)n," it follows 
that, before the people of this State can have a constitutional conven- 
tion composed of delegates selected at an election by ballot, they 
must be elected under the provisions of an act that is not repugnant 
to the fundamental law. 

The answer to all this is that the ^'people,''^ in their sovereign might, 
have expressed an unmistakable desire to rid themselves of an obnox- 
ious government. I now proi)Ose to refer to a few of the changes made 
by the so called people of Arkansas. The preamble to the act calling 
a constitutional convention commences by saying : 

" Whereas it is manifest that there are many defects and objectionable 



38 

])roi'isio)is in tlic present constitution of tlie State, and that it is not sat- 
isfactory to the i)C()|)lc thereof/' 

It is hut .just and fair to assuni* that those provisions of a State con- 
stitution tluit luvve been ignored in the Ibrniin,!; of the new, are anion<^ 
tlie i>i()\ isions that the preand)k' to tlie act describes as heiii,i;' "objec- 
tionable and unsatisfactory to the people," and more esj)ecially does 
tills inference arise if nineteen-twentieths of the old constitution is re- 
tained intact. In the (jonstitution of 1808 was this provision : 

^'- The jioramovnt allegiance of every citizen is due to the Federal 
Government in the exercise of its constitutional powers, as the same 
may have been, or may be, defined by tlieSui)reme Court of the United 
States ; and no i)ower exists in the people of this or any other State of 
the Federal ITnion to dissolve their connection therewith, or perform 
any act teiuling to imjjair, subvert, or resist the supreme authority of 
the United States. The Constitution of the United States confeivs full 
powers on the Federal Government to maintain and perpetuate its ex- 
istence, and whensoever any of the States, or the i)eoi)ie thereof, at- 
tempt to secede liom the Feileial Union, or forcibly resist the execution 
of tlie laws, the Federal Goveiiiment nu'.y, by warrant of the Constitu- 
tion, emj)loy armed force in (;omi)ellin,i>' obedience to its authority." 

The doctriiu^ enunciated in this provision was simply a declaration of 
what the loyal men of the United States contended for, and just what; 
the disloyal element denied. Here is an assertion of four distinct i)rop- 
ositions : First, that the paramount allegiance of the citizen is due to 
the Federal Government, and not to the State ; second, that no power 
existed in the ])eoplo of any State to dissolve their connection with the 
Federal Union; third, a denial of the right to secede; and fourth, that 
the Federal Constitution is a warrant of sufficient authority to author- 
ize the employment of force if a State attempted to secede or forcibly 
resist the execution of the laws of the United States. 

The first thing — the first act of the "people," whose shortcomings 
and violations of the laws and constitution of the State you are ex- 
pected to overlook, was to strike this provision out of the constitution 
of Arkansas. This act of the so-called peoj)le of Arkansas simi)ly 
amounts to a denial of the concessions therein made. It not oidy 
amounts to a denial of the concessions therein made, but it amounts, 
under the cir(aim stances, to an assertion, first, that the paramount 
allegiance of the citizen is not due to the Federal Government; second, 
that the power exists in the people of any State to dissolve their con- 
nection with the Federal Union; third, that the right to secede exists 
and belongs to the ])eople of any State; and, fourth, that the Constitu- 
tion of the United States does not warrant the employment of armed 
force to prevent a dissolutioti of the Union, or prevent a State from 
seceding, or to compel obedience to the laws. 

Not (content with asserting tliat Wn' paramount allegiance of the citi- 
zen is not due to the Federal Government, and re-assertnig the right of 
secession, they next i)roceeded to strike out the following provision: 

"All action of the State of Arkansas under the authority of the con- 
vention which assembled at Little liock on the ■4th of March, 18(51, its 
ordinances or its constitution, whether legislative, judicial or military, 
was, and is hereby, declared null and void; and no debt or Uahility of 
the State of Arkansas, incurred by the action of said convention, or of 
the general assembly, or any department of the government under the 
authority of either, shall be recognized as obligator3\" 

A provision similar to this was inserted in the constitution of 18G4, 
but the supreme court of the State, as organized before re construction, 



39 

in coiistrning' this provision of the constitution of 1864, in the case of 
Hawkins v. Fikius^ (24 Ark., 280,) tlecUived that all the acts of the State 
of Arkansas, save and except such as conflicted with the Constitution 
and hiws of the United States, were as valid and binding as though the 
State had sustained its rehitions v/ith the Federal Government, instead 
of aiding the rebellion with the revenues of the State, and with the ser- 
vices of the able-bodied men thereof. At this point I desire to direct 
your attention to another historical fact. The fourteenth amendment 
was submitted to a legislature composed of the same class of men who 
now constitute the Garhind legislature ; in fact, many of the members of 
the Garland legislature were members of the legislature to which the 
fourteenth amendment was first submitted. That le,i;islature refused to 
ratify the amendment and treated it in the most contemptuous manner. 
There is not a single letter, word or sentence, in the proposed new con- 
stitution, recognizing or accepting a single provision of the fourteenth 
amendment. Yon will be told these people accept the thirteenth, four- 
teenth, and fifteenth amendmentsto the Constitution of the United States, 
yet before I have done with this subject 1 will show to you that every pro- 
vision of the constitution of 1808, that in any manner recognized the four- 
teenth amendment, has been stricken out, and ignored inthelbrmingof the 
new. If it be true that these men have accepted the provisions of the 
fourteenth amendment, why is it we find them in hot haste to strike out 
a provision of the State constitution, that inhibited the payment of any 
debtor Gbligation incurred by the action of the secession convention, the 
assembly tliat met thereunder, or any department of government!^ That 
the State did incur debts and obligations in aid of insurrection and 
rebellion that have not been paid, is well known. This being true, 1 re- 
peat, what was the object in striking out the provision 1 The truth of 
the matter is, the way is being paved to legalize the acts of the State of 
Arkansas during the time it yielded allegiance to the C'onfederate States 
government, and to assume the payment of its outstanding rebel debts. 
Why, sir, during last week the house of representatives of that State 
passed a bill the first section of which is as follows : 

" AN ACT to coufirin and make valid the title to certain scbool-lands. 

"^e it enacted hy the general assembly of the State of Arkansas : Sec- 
tion 1. That all patents issued for the sixteenth sections, or any part 
thereof, or common-school land, during the war of the rebellion, and all 
the official acts of the officers of this State in regard to such lands during 
the said war, and also all deeds made by the common-school commis- 
sioners of the several counties in compliance with the act of the legis- 
lature of this State entitled 'An act to relieve certain citizens of Arkan- 
sas who purchased school-lands,' passed March 4, 1807, be, and the 
same is hereby, confir]}ie(l, ratified, and made valid, and full faith and 
credit shall be given to said patents', deeds, and official ucts in all the 
courts of this State." 

This is nothing more nor less than an attempt to rob the children of 
that State of the benefit of the school-fund arising from the sale of huids 
donated to the State by the United States for school-purposes. The 
lands described in the bill were paid for, if paid at all, in confederate 
money or Arkansas war-bonds, all of which was spent in aid of the re- 
bellion long since. On the adoption of the constitution of 1808, the 
issuing of patents for lands thus sold ceased, but it seems they are now 
to be validated at the exj)ense of a trust fund given the State by the 
United States for purposes of public education. 



40 

The fourteen til aiueiulinent not only inhibits a State from ])aying 
(l('l)ts and ol)li.u;itions incurred in aid of the rebellion, but it also in- 
hibits a Stiite Ironi i);iyin.u, or assuming "to i)ay, any debt or obliga- 
tion or claim lor the emancipation of slaves." In the constitution of 
1S08 was the following- provision on the subject of i)aying for slaves 
emancipated : 

(Sec. 3S, Art. V.) " The general assembly shall have no power to 
make comi)ensation for emancioated slaves." 

This provision, like the two others 1 have named, has been stricken 
out. In the (-onstitution of 18(i.S, was a provision which reads as follows : 

(Sec. 20, Art. XV.) "No ])ersou shall be allowed or qualihed to sit 
on a jury wiio is not a qualified elector." This ])rovisi()u has been 
stricken out, and the legislature may now fix such qualifications forjurors 
as may seem meet to that body. The objeci is to deprive colored men 
of the right to sit on juries. 

The striking out of these provisions is not the result of ignorance or 
oversight. They rehite to prominent issues that have been before the 
country for years. 

In the constitution of 18GS, the oath of office prescribed by the con- 
stitution of the State is as follows: 

"I, , do solemnly swear that * * * i ^yjn honestly and 

faithfully su])port and defend the Constitution and laics of the United 
States, the Union of the States, and the constitution and laws of the 
State of Arkansas." 

In revising the oath of office, the framers of the Garland constitution 
liave so amended the same as to read as follows: 

"I do solemnly swear that I w ill su{)i)ort the Constitution of the United 
States and the constitution of the State of Arkauvsas. " 

!Xow let us examine these changes, and find what " objectionable pro- 
A'isions" were in the first oath that were " not satisfactory to the people 
of Arkansas." After the word " sui)port" the words " and defend" are 
stricken out. After the wxud "Constitution," where the Constitution of 
the United States is referred to, the words "and laws" are stricken out. 
After the words "the Constitution of the United States, " the words, 
" //(C Union of the States^^ are stricken out. After the word "constitu- 
tion," where reference is made to the constitution of Arkansas, the 
woids " and laws" are stricken out. 

The men who revised this oath must have had some object in view. 
First, we find the words "and dcfeiul," where they occur after the word 
" support," stricken out. This evidences that there is a class of men in 
Arkansas that are willing to take an oath to support the Constitution of 
the United States, but are not willing to defend the same nor support 
the "/«/r.s-." It evidences the fact that there is a class of men in Ar- 
kansas who are not willing to take an oath to either support or defend 
"the Union of the States" nor the " laws " of the State of Arkansas. It 
may be said that an oath to sui)i)ort the Constitution of the United 
States is equivalent to swearing that they will "defend" the same. 
Ordinarily the word "sui)port" would include a defense of the thing to 
be su[)[)orted. I>ut it must be borne in mind tluit the oath of office is a 
revision of the oath of office inesciibed by the constitution of 1SG8. 
Answer me this question: Does not the striking out the words "and 
defend," where they occur after the word "su])])ort," conclusively show 
that the word "suj)poit" is not intended to be used in its broadest sense, 
l)ut that it is used in a qualified sense? What does the word " sup- 
port" mean when it is used with such qualifications? Webster says it 
means " to bear, to endure." Xow, sirs, we have it as the oath of office 



41 

that the officers of the Garland government are willing " to bear" 
and ''to endure" the Constitution of the United States. How long is 
not stated. IS^or does tlie animus of these men stop here. The Vlth 
article of the Constitution of the United States declares, "This Consti- 
tution and the laws made in pursuance thereof shall be the supreme law 
of the land." ISTotwitiistanding this provision, the "i)eople" of Arkan- 
sas, whose revolutionary acts you will be asked to legalize, are unwilling 
that any ofilicer of their government shall take an oath to either " sup- 
port or defend " the latvs of the United States, or the laws of the State 
wherein they reside. It is a well-known fact that but few, if any, of 
the persons who support the Garland government were either pleased 
or gratified at the enactment and enforcement of the reconstruction 
acts. It is a well-known fact that the legislature of 1800-67, which 
refused to ratify the XlVth amendment, appointed ten or fifteen of its 
members to visit Andrew Johnson, and condole with him over the fact 
that he was hampered by a loyal and republican Congress. It is evi- 
dent that the men who did not want to take an oath to support and 
defend the "/a»'s" of the United States must have had some reason for 
so doing. My impression is that the reason why they are not willing 
to take an oath to support the Imvs of the United States is that they 
are not willing to support the legislation enacted by Congress to enforce 
the Xlllth, XlVik, and XVth amendments. There are a great many 
persons in the United States who do not believe these amendments to 
have been legally ratified 5 and no State of this Union, in proportion 
to her poj)ulation, has so many persons who indulge in that belief as 
has the State of Arkansas, and I think the matters to which I have 
called your attention warrant me in making the assertion. 

Now, sirs, take the changes made in the form of the oath : the striking 
out of a provision asserting that the paramount allegiance of the citizen 
is due to the Federal Government; the striking out of a provision that 
asserted no power existed in the people to dissolve their connection v\'ith 
the Federal Government ; the striking out of a provision denying the 
right of secession ; the striking out of a provision asserting that the Fed- 
eral Government is clothed with jjower to perpetuate its existence by 
force of arms; the striking out of a provision inhibiting the legislature 
from paying for emancipated slaves ; the striking out of a provision pro- 
hibiting the legislature from ])aying any debt or liability incurred in 
support of the rebellion, and tell me what these things evidence. 

You cannot shut your eyes to the fact, nor can Congress shut its 
eyes to the fact, that Arkansas has taken a stej) that, if not checked, 
will lead to an unsettlement of the issues of the war. It is well known, 
and is a part of the- public history of the countrj^, that the States of Vir- 
ginia, North Carolina, South Carolina, Georgia, Mississippi, Alabama, 
Louisiana, Florida, Texas, and Arkansas were in rebellion against the 
United States and its authority. It is also well known that all of the 
States named, under some pretended authority of the President, framed 
and adopted constitutions, before the passage of the reconstruction acts. 
It is also well known that Congress for some reason would not admit 
any of these States to representation in Congress under the constitutions 
so framed. On examination of the constitutions of the States named, I 
find that no one of them recognized the doctrine that the paramount al- 
legiance of the citizen was due to the United States. On examination 
of the constitutions framed under the reconstruction acts, I find that 
everu one of them has a clause recognizing that the i)aramount allegiance 
of the citizen is due to the United States, and a denial of the right of 
secession. 



42 

Tlio presont oonstitution of Alabama coutains this provision : 

'• That this State lias no right to sever its relations to the Federal 
Union, or to pass any law in deroj^ation of tlie paramount allei>ianc(i oi 
the (citizens of this State to the Government of tlie United States.'' 

Tlie constitution of Florida has tliis provision : 

'' The paramount allei^iance of every citizen is due to tlie Federal 
Government, and no power exists with the people of this State to dis- 
solve its (;onnection tlierewitli. This State shall ever remain a member 
of the American Union ; the people thereof, a part of the American 
nation. Any attempt, from whatever source or upon whatever pretense, 
to dissolve said Union or to sever said nation, shall be resisted with the 
whole i)ower of the State." • 

The constitution of Geor><Tia has this provision : 

" The State of Georj>ia shall ever remain a member of the American 
Union ; the peoi)le thereof are a part of the American nation ; every 
citizen thereof owes paramont alle<»iance to the Constitution and Gov- 
ernment of the United States, and no law or ordinance of this State, in 
contravention or subversion thereof, shall ever have any binding force." 

The constitution of Louisiana has this provision : 

"The citizens of this State owe allegiance to the United States, and 
this allegiance is paramount to that they owe to this State." 

The constitution of Mississi[)pi has this i)rovision : 

"The right to withdraw from the Federal Union on account of any 
real or supposed grievance shall never be assumed by this State, nor 
shall any law be passed in derogation of the paramount allegiance of 
the citizens of this State to the Government of the United States." 

The constitution of North Carolina has this provision : 

" That this State shall ever remain a member of the American Union ; 
that the people thereof are a part of the American nation ; that there 
is no right on the part of this State to secede, and that all attem[)ts, 
from whatever source or upon whatever pretext, to dissolve said Union 
or to sever said nation, ought to be resisted with the whole i)ower of 
the State. That every citizen of said State owes paramount allegiance 
to the Constitution and Government of the United States, and that no 
law or ordinance of the State, in contravention or subversion thereof, 
can have any binding force." 

The constitution of South Carolina has this provision: 

"Every citizen of this State owes paramount allegiance to the Consti 
tution and Government of the United States, and no law or ordinance of 
this State, in contravention or subversion tiiereof, can have any binding 
force. This State shall ever remain a member of the American Union, 
and all attempts, from whatever sonrce or u[)on whatever pretext, to 
dissolve the said Union, shall be resisted with the whole power of the 
State." 

The constitution of Texas has this provision : 

" That the heresies of nnllitication and secession, which brought the 
country to grief, may be eliminated from future political discussion, we 
declare that the Constitution of the United States, and the laws and 
treaties made, and to be made, in pursuance thereof, are acknowledged 
to be the suinenie law, and that this constitution is framed in harmony 
with and in subordination thereto." 

The constitution of Virginia has a provision the same as that of 
Georgia. 

Of the four States (West Virginia, Maryland, Missouri, and Nebraska) 
hokiin^ ( oustitutional conventions since or during the existence of the 



43 

rebellion, all have similar provisions on the subject of allegiance and of 
that of secession as the States from whose constitutions I have quoted. 

I talve it, sirs, the concessions made by the States lately in rebellion, 
that the paramount allegiance of the citizen is due to the Federal Gov- 
ernment, and renouncing the doctrine of secession, are in the nature of a 
compact, and a part of the terms of surrender. The State of Arkansas, if 
the Garland government is recognized, has a constitution that Congress 
would not have aduiitted it to representation with at any time since the 
surrender. When you take into consideration the fact that, in order to 
get the acknowledgment that the paramount allegiance of the citizen 
was due to the General Government, and a renunciation of the doctrine 
of secession, from these States, Congress had to disfranchise a consid- 
erable number of the white electors of those States, and enfranchise the 
male black i)opulation over the age of twenty-one years, in order to get 
the concessions now made in their constitutions, it becomes Congress, 
now that disfranchisement no longer exists in any of the States, to jeal- 
ously watch every attempt to withdraw them. 

At the tiuie of the adoption of the constitution of 1SG8, the State of 
Arkansas had a debt which, when funded, amounted to about live mil- 
lions of dollars. One and oue-half millions of this amount is due to the 
United States, arising out of investing the Smithsonian fund in the 
bonds of the State of Arkansas, and the investment of certain Indian 
trust-funds therein. Under the constitution of 1808, the fiiith and 
credit of the State was i)ledged to the payment of this debt, and a sink- 
ing-fund ])rovided to pay the same. Under the Garland constitution, 
the faith and credit of the State is no longer pledged to the payment of 
this debt, and no provision is made for a sinking-fund. When the con- 
vention that framed the constitution of 1874, that Mr. Garland is now 
administering, was considering the financial clause thereof, Mr. Barnes 
otfered a new section, as follows : 

'• The faith and credit of the State of Arkansas is pledged to the pay- 
ment of all bonds issued under the provisions of an act entitled 'An act 
to aid in the construction of railroads,' approved July 1, 1808; of all 
bonds issued under the provisions of an act entitled 'An act to provide 
for the fuiuling of the public; debt of the State,' approved April 0, 1801) ; 
and of all bonds issued under the provision of an act entitled 'An act 
providing for the building and repairing of the public levees of the State,' 
approved March 10, ISOl), and all acts amendatory thereof or amendatory 
thereto ; and the auditor of state shall annually, on the first day of Septem- 
ber in each and every year, by computation, ascertain the amount of money 
required to i)ay the interest on said bonds as the same become due, and to 
meet the principal at maturity of the bonds ; and when the amount shall 
be so ascertained, the auditor of state shall notify the county clerks of the 
different counties of the rate per cent, necessary to pay said interest and 
create a fund sufficient to pay the principal at the maturity of the bonds ; 
and the same shall be placed on the tax-books of said coijnty and col- 
lected in the same manner as other taxes, and paid over to the State 
treasurer." 

Mr. Smoote moved to table the section. 

The yeas and nays were ordered, as follows : Yeas, 77 ; nays, 9. 

You will see by this, that the question of paying the public debt of 
the State was presented directly to the attention of the convention, and 
that it refused to renew the pledges given by the constitution of 1808, 
or to create a sinking-fund for the payment of either the inincipal or 
interest thereof. But, instead of making any such provision, the con- 
vention inserted the following provision : 



44 

" Sec. 8. The general assembly shall not have power to levy State 
taxes ior any one year to exceed in the aggregate one per cent.oH the as- 
sessed valuation of the property of the State for that year." 

With thisrestriction ni)OM the taxing-i)0\verof the general assembly, the 
interest upon her bonded debt and the ordinary exi)enst's of the State 
government cannot be paid. A jjortion of the debt of xVrkansas was at 
onetime in dispute, but when the same was ordi-red funded the disputed 
debt was i)laced on the same e<piality of other bonded indcl)te(iness. 
The ]»eople of Arkansas who sustain the Garland government mean 
repudiation of the public debt of the State, over one million and a Indf 
of which is held by the United States, and tlicy mean nothing else. The 
debt was created, except that arising from railroad-aid and levee bonds, 
in 1830. At the beginning of the war the treasury of Arkansas had 
more than a half million ot dollars in her cotters, and the State tax was 
but oiie-sixth or one-eighth of one per cent., ajid during a ])eriod of more 
than a quarter of a century they failed and refused to pay one dollar of 
interest on either the acknowledged or the disputed debt of the State. 
Having secured a recognition of the debt, are you going to throw it 
away f 

I desire once more to call your attention to the fact that the cause 
assigned for calling a constitutional convention was "to get rid of many 
defects nud ohjectionable irroiusions that were not satisfactory to the Sta';e 
of Arkansas." I have pointed out to you a few of the provisions that 
the Garland constitution rids the people ot that State of, and, having 
done this, it is but fair that 1 should i)oiut to "defects" ot the constitu- 
tion of 1808 thiit have been remedied by the new. I say to you, without 
fear of successful contradiction, that outside of the simple reduction of 
the supreme court from hve to three supreme judges, and the abolition of 
the ofiice of lieutenant-governor, the constitutional convention, nor the 
constitution framed by it, and declared adoi)ted by men of its own choos- 
ing, has not done anything for the benefit of the peoi)le of that State 
which could not have been conferred upon them by an act of the legisla- 
ture that called the convention. 

i>fow, sir, I come to a point tiiat I regard as fatal to the Garland gov- 
ernment, if all the others named are i)ronounced untenable. We have 
already seen that, in a peaceful government, the only manner in which 
the voice of the people can be obtained is under the operation and in 
accordance with a law of the State. 

The constitutional convention of Arkansas attempted to pass a law 
regulating and i)rescribiiighow the judges of election should be selected; 
to whom the returns should be made, and how the constitution should 
be declared ratified. The act calling the constitutional convention failed 
to provide the manner and mode that should be pursued by the people for 
ascertaining the sense of the peoi)le thereon. I shall not insult your 
intelligence by entering into any lengthy argument, or citing any great 
number of authorities to show that a constitutional convention is not 
clothed with lefjislative power. In speaking of the power of a constitu- 
tional convention to pass an ordinance regulating the taking of a vote 
thereon, the supreme court of Pennsylvania said, ( Wells and others v. 
Election Commissioners : 

"The convention is not a co-ordinate branch of the government. It 
exercises no (jovernmeatal poicer^ but is a body raised by laa-^ in aid of 
the i)0i)ular desire to discuss and propose amendments, which have no 
fjorernimj force, so long as they remain pro[)ositions. While it acts 
within the scope of its delegated jjowers it is not amenable for its 



45 

acts; but when it assumes to lef/inJafc, to repeal and displace existing 
institutions, it acts without antho)' it ij.''^ 

Just what the supreme court of Pennsylvania said a constitutional 
convention could not do has been done by the pretended constitutional 
convention of Arkansas. The constitution and laws of Arkansas make 
registration a prerequisite to voting-. The registration once made, it 
staiuls for two years, unless it should be made to ap[)ear to the governor 
that a pro}>er registration was not made at the time prescribed by law, 
in which evauit he is authorized to order another. The regular time 
for making the registration was preceding the election held on the 5tli 
of November of 1S72, but for reasons not within the law Elisha Baxter 
ordered anotlier just preceding the election held in November of 1S73. 
No subsequent registration having been made, by the governor, one of 
two things becomes indisputably true, and that is that one or the other of 
these registrations fixed and determined the qualifications of electors at 
all elections to be holden thereafter until a new registration was made 
in pursuance of law. This proposition, I presume, will not be denied. 
The question now arises, " Did the constitutional convention have the 
power to order a registration for the purpose of holding an election for 
the adoption or rejection of the constitution?" 

The 23d section of the registration act confers this power on the 
governor. If the supreme court of Pennsylvania are correct as to the 
law of the case — and I think they are — the sole power of the convention 
was to discuss and propose amendments. I have not tlie time to go into 
all the acts of lawlessness and usurpation of power that have kept 
pace with the initiation and the pretended adoption of the Garland 
constitution, but it will be sntficient to say their name is legion, and of 
a character the mere recital of which shocks the moral sensibilities of 
every man who has any regard for the law. The constitution, and the 
new amendments to the same, require a registration of voters previous 
to voting, as a j)rerequisite. It was held, in the case of The People v. 
Kopplekorn, (16 Mich., 342,) that an election is void where there had 
been no registration, notwithstanding the persons voting were other- 
wise legal voters. The 6th section of the election act says : 

"The judges of election, apjjointed as aforesaid, shall be the judges 
of all elections, within their respective districts, until the next general 
election.'''' 

By the ordinance of the convention, that body elected three commis- 
sioners and clothed them with authority (that is, if the ordinance could 
confer it) to appoint su})ervisors for each county, whose duty it was to 
ap[)oint the jiulges of election. These jiidges of election received the 
votes and made a return of them to the men who appointed them, and 
these appointees made a return to the men who appointed them. I 
insist a constitutional convention is not, and cannot be, clothed inher- 
ently with any such power. In the first place, if the legislature had 
proposed to give the convention the power of legislation-^it could not 
have done so. Legislative power cannot be delegated, {Rice v. Foster, 
4 Harr., Del.) Legislative power can neither be delegated to the dele- 
gates of a constitutional convention nor to the people themselves. This 
question has been so often adjudicated that I do not feel it even neces- 
sary to cite the cases, much less to go into any extended argument on 
the subject. 

There seems to be a wild and ungovernable delusion in the minds of 
some people that a constitutional convention may do anything. There 
is notliing in it ; nor is it necessary to clothe it with any other power 
than to discuss and propose propositions for adoption. A constitutional 



4G 

convention is snpposed to be a creature of the laic ; it is presumed to 
be subordinate to the constitution, and to be sitting- ninU'r the author- 
ity :ind protection of the constitution iind laws of the State. If it is 
not, it is a revolutionary body, and must sujtport itself by force. It 
must be a lawful or an uidawiid assemblage, lor, under the American 
system of government, there is no such thing as a governuient of half 
force and half laic. 

The power of susjiending and setting aside the laws is i)ur(dy a ler/- 
islatire function. If it is, then it "must be exercised by thi^ Icuislatiire. 
The error in supposing a constitutional convention is clotlied witii extra- 
ordinary i)owers grows out of the fact that the ignorant too often con- 
found the members of the coni'cutioH with the people. The delegates ai'e 
110 more 'Hhe people" than are the members of the legislatui-e. Each 
are representatives, and each have separate functions to perform. One 
enacts laics for a body-corporate, while the other seeks to devise and 
])ropose a system of government, wherein the defects of the old govern- 
ment shall be remedied. The convention proposes, and the people dispose 
of its work. As to whether that system is better than the old, is a 
question the people determine for themselves, through the forms of law. 
If yon will but keej) before your minds that a constitutional convention 
is only a rejnesentative body for rhe pnrj)ose for which it is called ; if 
you will not lose sight of the fact that it is an assemblage having only 
delegated poicers, you will have no trouble in arriving at the conclusion 
that the coiivention and the p(M:)])le are not ideHtieal. But sui)pose we 
admit that they are, and what follows'^ Are the friends of tin; (larland 
government any better oif with this admission than they are without it? 
1 think not. At the time of the calling of the convention all the legis- 
lative ])ower of the people of the State of Arkansas was lodged with the 
legislature. This being true, the peoi)le of Arkam-as had no legislative 
poicer to delegate, either to a constitutional convention or any other 
body of men. Does it not stand to reason that if the people themselves 
could not give force, validity, and effect to an act of the legislature, 
they cannot confer legislative power! If in the formation of the gov- 
ernment the people delegated away all the legislative power they i)os- 
sessed, does it not stand to reason that there was nothing left to dele- 
gate ? 

The manner and mode of })assiug laics for the government of the peo- 
ple of Arkansas is ])lainly and distinetly de(ined. First. Every bill 
must be read three times, on different days, before the iina! ])assage 
thereof, unless two-thirds of the house where the same is pending 
siiall dis[)ense with the rules. tSce<»i<l. A majority of all the members 
voting must vote therefor before it becomes a laic ; and Third. On the 
final passage of all bills the vote shall be taken by yeas and nays, and 
entered on the journal. After this formality has been gone tlirough, 
what then ? Why, every bill and concurrent resolution, except of ad- 
journment, must be presented to the governor for his ap])roval or disap- 
juoval. \\' he approves it, he shall sign it; if not, he shall return it to 
the house where it originated. Have these formalities been observed '? 
Has the ordinance been submitted to the governor f lias it been read 
three times on different daysf Have the yeas and nays been called 
and entere<l u}>oii i\\(i jonrnid? Did a majority vote for it 'I ^Vilere is 
the evidence that any one ever voted for this ordinance ? 1 su[)])ose 
some one will say it will be found in the journal of tiie convention. Sup- 
j)()se it is found there, it proves nothing. The convention icas not required 
to IxCep a journal, and there is not a court in existence anywliere in the 
civilized world that would admit in evidence the records of a body 



47 

that was not bound to make a record of its proceedings to prove any- 
thing'. A constitutional convention does not need a journal. Its action 
binds no one nntil the people have ratitied its work; and that done, it is 
a matter of no importance to know whether a section was read once, 
twice, or three times before it was submitted. 

Laws for the State of Arkansas cannot be made in this manner, nor 
can the laws be suspended and set aside hy an assemblage that is only 
clothed with power to propose and suggest improvements in the funda- 
niental law. No doubt some of our learned friends on the other side 
will call yonr attention to the fact that the act calling the convention 
authorizes it to frame a constitution and provide for putting the same 
in force. What power is conferred by the language "and provide for 
putting the same in force!" It will be observed that nothing is said as 
to the time, place, and manner of submitting the same, nor is there any 
mode pointed out lioiv the same was to be " put in force." It may be 
said under this power that the convention could have declared the con- 
stitution ratitied and in force without having submitted the same to the 
people. What it might have done is one thing, and what it did do is 
quite another; therefore I shall not discuss the abstract proposition of 
what the convention " might have done." 

I have a case in point, where, according to my notion of things, 
greater power was conferred on a constitutional convention than in tlie 
present case. The question arose in the State of Pennsylvania, and 
was, whether, under the tifth section of the act convening a constitu- 
tional convention, the convention had the power to regulate the mode 
and manner of voting thereon, or of ascertaining and declaring the re- 
sult. The fifth section alluded to reads as follows : 

" The convention shall subujit the amendments agreed to by it to the 
qualified voters of the State for their adoption or rejection, at such time 
or times and in such manner as the convention shall prescribe." Under the 
authority conferred, or rather supposed to be conferred, by this section, the 
coiivention passed an ordinance appointing five commissioners, and au- 
thorizing them to make a registration of the voters of the city of Phil- 
adelphia and appoint the persons to conduct the election. The povrer 
exercised by the constitutioiial convention in Pennsylvania, as will be 
seen, was almost identical with that exercised in Arkansas. It strikes 
me that the power to provide the time and manner of taking the sense 
of the people upon the adoption or rejection of an instrunsent is the 
conference of as much power as is contained in the words "to provide 
for i)utting the same into force." 

The power of providing for pntting a thing in force is to fix a time 
when (in the event the constitution was adopted) it should go into effect, 
and dues not include the power to regulate the means to be pursued /or 
its adoption or for the ascertainment and declaration of the fact. 

The supreme court of Pennsylvania, in disposing of the question pre- 
sented by the section quoted, and the facts stated, said: s 

" The power claimed for the conveiition is, by ordinance, to raise a 
commission to direct the election npon the amended constitution in the 
city of Philadelphia, and to confer on this commission the power to iiuike 
a registration of voters and furnish a list so nnule to theeletjtiou ofdcers 
of each precinct; to appoint a judge and two inspectors for each divis- 
ion, by whom the election therein shall be conducted. This ordinance 
further claims the power to regulate the qualifications of the officers thus 
appointed to hold the election, and to control the general returns of the 
election. It is clear, therefore, that the ordinance assumes a present 
power to displace the election officers now in office under the election 



48 

laws for tlio city ; to substitute ofticers nj^pointod under the autlinrity of 
the convention, and to set aside tlu\se (election hiws so laras lehites to 
the qualilicatiou of the oflicers and tlie manner in \vhi(;h tiie general 
returns shall be made. The authority to do this is claiiiu'd under the 
liltli section, iiiving tlie convention i)o\ver to suhmit thv amendments at 
su(.'li tinu' or times and in such Duoiner as the convention shall prescribe. 
It is ariiucd tiiat the manner of submission confers a power to vondnet the 
cleetUm upon the mutter snbmittcd. To slate the ])roi)()sitioii is to refute 
it. For the manner of submittinj;' the amendments is a totally dilfereut 
thing' from conducting the election upmi the submitted amendments. 

"The question before us is, Cau the convention, belore they either pro- 
claim a constitution themselves, if they have the power, or before any 
ratification, if they have uot, pass an ordinance to repeal an existing sys- 
tem of laws on a particular subject '? This is a question oH power, and uot 
of wisdom. However wisethe substitution of their own election-machinery 
for that ])rovided by law for this city may be, the question is not for us. 
"We can decide oidy the question of pon-er. The convention is not a co- 
ordinate branch of government. It exercises no (jovernmental poiccr, but 
is a body raised by law, in aid of the popular desire to discuss and pro- 
pose anuMulments vrhich have no governimi force so long as they remain 
]>ropositions. ^Vhile it acts within the scope of its delegated powers it 
is not amenable for its acts, but when it assumes to legislate, to re})eal 
and displace existing institufio)ts before they are displaced by the adop- 
tion of its propositions, it acts without authority^ 

I do not deem it necessary to comment on this decision, for it seems 
to me it settles this case, even if you should disagree with me as to all 
the other points. 

The powers of a convention of the people are not often the subject of 
judicial determination. Indeed, I know of but few instances where the 
courts have adjudicated the question. A convention of the people was 
called in South Carolina, for a specific purpose, to wit, that of nullify- 
ing certain acts of Congress. Among other things, the convention 
passed an ordinance empowering the general asseudjly "to provide for 
the administration of an oath to the citizens and ofQcers of the State," 
&c. 

The legislature, under the power conferred by the ordinance of the 
convention, passed an act requiring, in addition to the oath prescril)ed 
by the constitution of the State, that the person named would be "faith- 
ful and bear true allegiance to the State of South Carolina." 

JMcCready having been appointed to an office in the militia, took the 
oath prescribed by the constitution, and demanded his commission. 
This was refused him unless he would take the additional oath. 

Thereupon he applied for a nmndamus against the person holding bis 
commission, to compel its delivery. 

The ordinance to which 1 call your attention, like the ordinance in 
Soutii Caroliim, was not submitted to the peoi)le. 

Judge O'Neal, in commenting on the power of a convention of the 
lieople, says, {State v. Hunt, 2 Hill, S. C, 2-!3 :) ^, 

"In one point of view, a convention may be illimitable. It is, how- 
ever, then a revolutionary and not a constitutional convention. I do not 
understand that this revolutionary character is claimed for the conven- 
tion Avhich ordained the ordinance iu)w under consideration. * * 
It is true the legislature cannot limit the convention, but if the people 
elect for the ])urpose of doing a specihc act or duty, pointed out f)y the 
act of the legislature, the act could detine their powers. For the people 
elect with reference to that and nothing else. A convention assembled 



49 

under the consfitntion is onlv the people for the [)ari)o.se for ichlch it as 
sembles^ and if they exceed those purposes their act is void uuless it is 
submitted to tlie people aud affirined by them." 

Judge Thompson, in the same case, says: 

" In the a}>pointmeut of delegates to that convention, the people acted 
on the faith that they were to be charged with those duties, (those named 
in the act,) and no other, and the assumption of any other powers than 
those necessary to the attainment of the objects in view w^ould have 
been a violation of trust reposed in them, and a usurpation of the rights 
of the {)eopie. The idea is, that the convention is possessed of all the 
powers of the people, and might rightfully exercise it in relation to all 
subjects, and in any manner they might think tit. Can it be supposed 
that the good people ot this State thought that in the appointment of 
delegates to that convention they were conferring on them the author- 
ity to transfer their allegiance to the Grand Turk or the Emperor of 
Russia ? * * * The foundation upon which all our institutions are 
built is, that the will of the people is supreme, nor will it be questioned 
that it is equally imperative when expressed through agents regularly 
constituted by them for that purpose. But surely, when any body of 
men, however august, take upon themselves to act in the name of the 
people, an individual who supposes his rights invaded, may be permit- 
ted, respectfully, to ask for their authority, and to that request, the 
courts, the organs appointed by the constitution to administer justice, 
are bound to respond. If an unauthorized assembly should take upon 
itself to send forth an edict, in the name of the ])eople, commanding 
obedience to its dictates, would that be binding on the citizens 1 Cer- 
tainly not. And in what does this differ from the act of a regularly 
constituted body who assume powers not delegated by the peoplef" 

In the year 1849 the people of California adopted a constitution in 
which 1 tind the following ])rovision : 

" If at any time two-thirds of the senate and assembly shall think it 
necessary to revise and change this entire constitution, they shall recom- 
mend to the electors at the next election for members of the legislature 
to vote for or against the convention ; and if it shall appear that a ma- 
jority of the electors voting at such election have voted in favor of call- 
ing a convention, the legislature shall, at its next session, provide by 
law for calling a convention, to be holden within six months after the 
passage of such law ; and such convention shall consist of a number of 
members not less than that of both branches of the legislature." 

You will observe that this clause does not provide the machinery for 
the conduct of the election, and the ascertainment and declaration of its 
result. Now, I desire to call .your attention to an amendment made to 
the constitution of that State, and the conference of power therein con- 
tained. The amendment is as follows : 

"The constitution that may have been agreed upon and adopted by 
such convention shallbe submitted to the people at a spec^ial election, 
to be provided for by law. * * * Thefreturnsof such election shall, in 
such manner as the cnnnentioti shall direct^ be certihed to the executive 
of the State, who shillca'l to his assistance the treasurer and secretary 
of state, and compare the v^otes so certified to him. If, by such exami- 
nation, it be ascertained that the whole number of votes cast at such 
election be in favor ot such new constitution, the executive of this State 
sliall, by proclamation, declare such new constitution to be the constitu- 
tion of the State of California." 

This amendment seems to have been added to the constitution of 
California for the sole purpose of conferring on the constitutional con- 
4 a 



50 

ventioii tbe power to provide for the conduct of the election to beholden 
for the adoption of the constitution. Is it at all ])robal)le the people 
of that State would havejione to the trouble of adding an aniendnieut to 
their constitution conferring' this power if the legislature could have 
delegated the power to a convention, or if it was one of the inherent 
poweis of the convention ? The trouble in this country is, that we are 
liable to attribute entirely too much power to irresjionsible bodies. 
Naitoleou the First derived the ])ovver that afterward made him Emperor 
of rranc(^ through the action of au assemblage that claimed and exer- 
cised no greater j)Owers than our opponents claim belong to a constitu- 
tional convention. The idea that a constitutional convention and its 
members are above all law is simi>ly preposterous. If it is above the 
constitution, if it is beyond the control of law, you have created a gov- 
ernmeut in which the executive, legislative, and judicial departments 
are all united, and united irrevocably. 

Would that be a republican form of government where the whole 
power of the State is lodged in the hands of seventy-five or eighty men 
who are above all law, and who have the right to suspend courts, 
judges, and the whole machinery of government by a simple ordinance, 
the people havingno meansof ascertaining whether it everreceived even 
a majority vote of the members? If the power extends to the suspen- 
sion of one law, it extends to all ; if their acts are biiuling in one re- 
spect, they are binding in all. Have you ever paused to reflect on what 
would be the condition of a State if a constitutional convention should 
assert the power our friends on the other side say it possesses, if it re- 
fused to surrender the pon^er? They are elected /o?* an indefinite term ; 
will any one of you tell me the tenure of office belonging to a delegate 
to a constitutional convention ? Is it possible that the i)eople of this 
country cannot take the steps to quietly and peacefully alter and amend 
their organic act without i)lacing a ])ower in the hands of the persons 
selected for that purpose that may be destructive of their own liberties, 
and that, too, without their assent ? The question is not whether the 
delegates will use their power oppressively 5 this, I say, is not the ques- 
tion, but it is, do they possess it at all ? 

Let me direct your attention to the ordinance of the convention, and 
I do this not for the i)urpose of pointing out a defect in the ordinance 
as an ordinance, but tor the purpose of showing the danger to all con- 
stitutioiuil forms of government if the action of the Arkansas constitu- 
tional convention is allowed to pass into a precedent. The power to de- 
clare the constitution adopted is vested in tliree i)ersous selected by the 
convention itself. From the decision of these three men there is no ap-« 
peal, save to the Congress of the United States. In the ordinance sub- 
mitting the constitution of 18GS to a vote of the qualitied electors was 
this i)rovision: 

''The said commissioners shall have power to inquire into the fairness 
or validity of the voting upon the ratitication of this constitution, 
* * * and shall also have i)ower, when it is made to appear that 
fraud, fear, violence, imi)ro|)er influence, or restraint were used, or per- 
sons were prevented, or intimidated, from voting at such elections, to 
take such steps, either by setting aside the election and ordering a new 
one, or rejecting votes, or correcting the result in any county or pre- 
cinct, as may in such cases be just and equitable." 

When we come to take into consideration that the ordinance sub- 
mitting the (constitution of 1874 is almost identical in every res])ect 
with the ordinance submitting the constitution of I8G8, except that the 
section cited has been strielcen out, does it not at once become apparent 



51 

that the coustitntion of 1874 was to have been declared adopted at all 
hazards ? And more especially does this appear so, when you come 
to examine the ordinance and find no provision in it punishing- them for 
any act of misfeasance or maladministration. 

Senator Bnckalew, when the bill for the admission of Arkansas was 
pending before the Senate, criticised very severely the action of the 
constitutional convention of 1868 for lodging power of this kiud in a 
board composed of three persons. 

If indignation conld be indulged in by a Senator of the United States 
over a provision allowing a contest., what would he have said about an 
ordinance that did not allow a contest to be made at alH 

The Garland constitution was put in force by the declaration of three 
persons appointed by the convention. The result was ascertained and 
declared by persons in no manner responsible to the then existing State 
government of Arkansas. President Tyler said to the governor of 
lihode Island, that "until he was advised, in a regular manner, that 
the constitution of that State had been altered and abolished, and an- 
other substituted in its place, by legal and peaceable proceedings, adopt- 
ed and pursued hy the authorities and people of the State, he would 
respect the requisitions of that government which has been recognized 
as the existing government through all time pastP Answer me if the 
proceedings in the Arkansas case have been legal and peaceable., and 
whether another constitution has been substituted and adopted hy the 
authorities and the people of the State'? If so, point out to me what 
" authorities" of the State have so declared. Will it be contended that 
the three persons who declared the constitution ratified were ^^ authori- 
ties^^ of the State f The supreme court of Pennsylvania, in the case of 
Wells and others v. Election Commissioners, said that if a constitutional 
convention assumed " to legislate to repeal and displace existing insti- 
tutions before they are displaced by the adoption of its propositions, 
* * * the citizens injured thereby are entitled, under the declaration 
of rights, to an oi^e/t court, and redress at our hands." Judge Thomp- 
son, in the case of The State v. Hunt (2 Hill, S. C, 223,) said: 

" When any body of men, however august, take upon themselves to 
act in the name of the people, an individual who supposes his rights in- 
vaded may be permitted respectfully to ask for their authority, and to 
that request the courts, the organs ap[)ointed by the constitution to ad- 
minister justice, are bound to respond." 

What courts are bound to respond! The courts that are created by 
the exercise of fraud, violence, and in violation of all law, or the courts 
of the existing government f These courts both agree that the courts 
have jurisdiction of all questions of this character. Does not this show 
conclusively that these are ^/te "authorities" referred to by President 
Tyler? What evideuce have you, or in what are you advised, that the 
"authorities" of Arkansas have altered and abolished the government 
created by the constitution of 1868? 

It may be urged that the fact that tli'e constitutional convention of 
1868 passed an ordinance for submitting the constitution is a precedent 
to prove that a constitutional convention possesses this power. Lest 
this thing should mislead those who are not familiar with the facts, 
allow me to direct your attention to two things : First, that the fourth 
section of the act of Congress of March 3, 1867, provides " that said 
constitution shall be submitted by the coui^ention for ratification to the 
persons registered ;" and second, that no attempt was made to, in any 
manner, antagonize or change the mode of election prescribed by the act 
of Congress. 



52 

But, vsiis, suppose we admit for argument' sake that the conveution 
possessed the i)ower to i)rovide for and con<luct an election for the pur- 
pose of '■'■putting the constitution in force.,''^ this certainly would not con- 
fer power on the convention to pro\ide for the election of State and 
county officers. The State had ])lenty of State and county oflicers, and 
the constitution could have been " put in force" without disturbinjj 
any of them until such time as the lei;islature directed an election. It 
may be said the schedule or ordinance ])rovidino: for the election is a 
part of the constitution. The ordinance submitting the constitution 
did not submit the ordinance to a vote of the people. Even if it did, it 
could have no binding; ibrce or eifect nntil declared ratified. The elec- 
tion was held on the l.">th of October, and tbe announcement of the 
result was not made until the 30th. (Jan the peoi)le of a State give an 
ordinance a retroactive effect when it is not so provided in the act! 
If tliey cannot, Mr. Garland and the othcers of his government derived 
their title to otlice at an election, or rather a pretemled election, not au- 
thorized by law. It may be said that the constitutional conveution of 
1808 did the same thing now complained of. So it did ; but Congress 
by the admission of Senators and Representatives recognized that elec- 
tion. There is no doubt but Congress could have ordered an election to 
be held for State and county oflicers, notwithstanding the election held 
under the provisions of the ordinance. When California was acbnitted 
she came in with a full set of oflicers, without the assistance of an ena- 
bling act, or any provision having been made for the election of State 
and county oiH(;ers by Congress, and the recognition thus given was 
curative of all that preceded the election -, and the same is true of the 
election of State oflicers for Arkansas under the constitution of 18G8. 
If Congress should approve the election held under the (Jarland con- 
stitution it would cure all defects, at least so as to i)reclude inquiry. 

There is one matter more that I desire to call your attention to, and 
I will close. Arkansas was admitted to representation under the pro- 
visions of "An act to admit the State of Arkansas to representation in 
Congress," passed June 22, 18G8, upon the tbllowing fundamental con- 
dition : 

"That the constitution of Arkansas shall never be so amended or 
changed as to deprive any citizen, or class of citizens, of the United 
States of the right to vote, who are entitled to vote by the constitution 
herein recognized, * * * * Provided^ That any alteration of said 
constitution, prospective in its effect, may be made in legard to the time 
and place of residence of voters." 

The " fundamental condition " upon which Arkansas was admitted 
has been violated. Under the constitution of 1808 "every male person 
Avho has been naturalized, or has legally declared his intention to 
become a citizen of the United States, who is twenty-one years old and 
upward, and who shall have resided in this State six months next pre-, 
ceding the election, and who at the time is an actual resident of the 
county in which he ofl'ers to vote, shall be deemed an elector." 

Under the i)rovisions of the Garland constitution the term of residence 
in the State is changed from si.v to tu-elve months, and where the consti- 
tution of 1808 did not specify the length of residence in the county or 
township, the Garland constitution imi)oses a residence of six months in 
the co'iUity and thirty days in the township. 1 do not say this is not a 
wise provision, but I do say that it is not '■'■ prospect ire in its eifect'\siS 
to the time and j;/rtce of residence of voters. This provision, on account 
of not being i)rospectivc in effect, struck the ballot from the hand of 
thousands of persons who were allowed to vote at the adoption of the 



53 

constitution, but who were denied the right at the election on the 3d of 
November for Congressmen. Under the constitution of 1868, and the 
act of admission, the State of Arkansas was prohibited in plain and 
express terms from making any alterations in regard to the " time and 
place of residence " of electors. Yet, in the face of this inhibition, the 
Garland constitution requires a residence of six months in the county, 
■when there was no such requirement before, and a residence of one 
month in the township when none was required under the constitution 
of 1868. The object of the proviso was to keep the ballot in the hands 
of every person that became entitled to it under the constitution of 1868, 
no matter how often the constitution might be changed. The compact 
is just as much violated by striking out six months and inserting twelve 
as though they had stricken out six months and inserted twelve years. 
If they had the right to do the one, they had the right to do the other. 
That this compact is binding on the people of the State of Arkansas I 
apprehend will not be questioned, except by those who deny the validity, 
force, and effect of the reconstruction acts. Compacts of one character 
and another have been assented to by all the States of the Union, save 
the original thirteen, and in most instances they have been sacredly 
observed. 

Under the first act of admission, (June 23, 1836.) the State of Arkan- 
sas, by the terms Of her compact, agreed that no tax should be imposed 
on the lands and property of the United States ; that non-resident pro- 
prietors should not be taxed higher than resident ; that the lands granted 
soldiers for military services should not be taxed for three years. The 
ordinance of 1787, in relation to the Northwestern Territory, among 
other tilings inhibited any of the States formed out of that Territory 
flom establishing or maintaining slavery. Judge McLean, of the Su- 
preme Court of the United States, in the case of Spooner v. McGonnell, 
(1 McLean, 312,) goes into this question at great length and exhausts it. 
When Virginia assented that Kentucky might become a separate and 
independent State, it was a part of the (jompact that the title to the 
lands in that State should be determined by the laws of Virginia. 
Afterward Kentucky passed other laws upon the subject and the courts 
held the legislation of Kentucky violated the compact and declared the 
subsequent law a nullity. 

But it may be said that Congress had no riglit to require such a con- 
dition, and that the States havp the sole right to fix the qualifications 
of electors. The assertion of a doctrine like this would be nothing netv. 
Why, sirs, Andrew Johnson asserted the same doctrine in 1868, in his 
message vetoing the bill for the admission of Arkansas. The attention 
of Congress was directly called to that feature of the bill, and Congress 
passed it by a two-thirds vote of each House over his veto. In the face 
of that vote, with the attention of Congress called directly to the ques- 
tion of its power, an argument from me would be a W'ork of superero- 
gation. 

No doubt, sirs, you will be told that the people of Arkansas have 
cured all the defects and irregularities mentioned hy ^'■acquiescence.''^ 
Now, let us see if this be true. Where is the evidence of acquiescence ? 
W^hat witness testified to it? 1 say to you that there never has been 
any acquiescence in the matter, save such as the prisoner yields to his 
captor, and such as the prudent have indulged to avoid violence and 
bloodshed. Under the decision of the President, the people of Arkan- 




54 

the Pri'sitlent's decision may have been, the people of Arkansas had but 
one of two things to do : to array themselves against the j^ower and 
authority of the United States (lovernmeiit, or to (piietly submit until 
su(;h time as their grievances could be redressed by Congress, the only 
tribunal to which they could ai)ply. In Mny last the House appointed 
a committee to incjuire into the condition of att'airs in Arkansas, and we 
have been laboring assiduously ever since that time to redress our 
grievances. It is true the legislature, or rather a body of men that 
Baxter calls a legislature, has been in session since the time the Presi- 
dent said the determination of who is governor of Arkansas was a 
question for the determination of the general assembly; but during the 
greater portion of the time it was in session Elisha Baxter had it sur- 
rounded with armed sentries, through which the members of the legis- 
lature themselves could only i)ass by virtue of the passes of one of Bax- 
ter's officers. On tlu» day alter the recognition of Baxter as governor, 
by the J'resident, the bill calling a constitutional convention was passed, 
calling a convention to meet in July. The legislature was in session 
but seventeen days, all told, during which time it passed a bill prevent- 
ing the supreme court from convening until the 4th Monday in Xov^eni- 
ber; an act suspending officers from the exercise of their duties after 
the house had passed articles of imi)eachment against them ; and in 
three days thereafter passed articles of impeachment against every offi- 
cer of state who would not resign, both executive and judicial, without 
taking a scintilla of testimony, as the evidence belbre the committee 
shows, charging them with treason, an offense that is not a cause of 
impeachment under the constitution of the State. This last-mentioned 
act also authorized the governor to appoint other persons to act during 
the suspension of the persons the house had impeacdied. In tilling the 
three vacancies on the supreme bench occasioned by impeachment, he 
api)ointed his leading counsel in the quo-u-arranto and in the Brooks- 
Baxter case chief -justice, and the associate counsel associate justice. 
The office of attorney-general he tilled with one of his brigadier-gener- 
als ; the office of treasurer of state Avith a major-general ; the otlice 
of superintendent of the penitentiary with another major-general ; 
and the office of commissioner of public lands and immigration with 
one of his uewspai)er editors and an agent of the associated press, as a 
compensation for falsehoods told and to be told. During all this time 
martial law prevailed, and State troops were regularly on duty and iu 
barracks at the, State-house, and at the private residence of the gov- 
ernor. The legislature had adjourned, and we could not prosecute a 
contest there. The convention act was so amended as to read as fol- 
lows: 

"That all judges of this State are prohibited from issuing any writ or 
process whatever, or of taking any action, or assuming any jurisdiction 
in or about or in connection with the election provided for in the act to 
which this is supi)lemental and amendatory." 

This act ousted the jurisdiction of the judges at chambers, and the 
act of May 27, 1874, adjourns the circuit courts all over to the fall 
terms, none of which w ere to be holden until after the constitutional 
convention adjourned. From this statement you will see that all the 
avenues through which legal redress could be sought were closed. All 
that we could do was to sit <piietly by and submit to the things going on 
around us, or rise iu arms against them with a full knowledge that not 
only the partisan militia of Baxter would be arrayed against us, but 
the entire power of the Federal Government, l^reparatory to turning 
the State government over to Garland, commenced the organization of 



55 

a militia, purely of a partisan character ; for I assert here that in all 
the militia organizations ot the State there is not one person who is rec- 
ognized as a republican in it from the highest to the lowest ; so that, 
when the time came to make the change, so that when the time came to 
make an absolute delivery of the property, a force sufficieut to protect it 
would be on hand. It was a strangely-organized government. First, 
they began with the conntj- officers, and installed them, in most in- 
stances, by violence and force, or under such circumstances as would have 
rendered resistance useless. This done, the circuit judges and prosecu- 
ting attorneys were inducted into office. This done, a supreme court 
followed. This done, then followed the legislature. The legislature 
counted the votes cast for executive officers, and declared the result. 
The persons thus declared elected qualified and took possession. The 
officers of the State were quietly and peaceably given up, with the ex- 
ception of the office of governor. Bear in mind that the officers who 
quietly yielded up the offices of State were not the persons declared 
elected under the constitution of 1868, but were the appointees of Baxter^ 
whom he had appointed to fill forced vacancies, or to act during the 
suspension of the officers against whom the house had passed articles 
of impeachment, and the legislature had adjourned without giving them 
an opportunity to be heard. When all this was accomplished, Baxter 
turned the office of governor over to Garland, who, the moment he took 
possession, stood at the head of an organized government, and in pos- 
session of its arms and munitions of war. So long as Baxter held on 
to the State government tiiere was no power to interfere, and no courts 
to apply to if there had been. It was only when Baxter abandoned 
and abdicated the governor's office that any legal steps could be taken 
to sustain the government formed by the constiitution of 1868. When 
Baxter abandoned the office of governor, the lieutenant-governor ap- 
plied to the President for aid, aud that application has been referred, 
by the President, to Congress. It is true there has been no great 
amount of violence, or resistance to the Garland government; but there 
has been no ^'-acquiescence'''' on the part of those chosen to fill the differ- 
ent departments of government. 

In law there is no difference between rights acquired by fraud and 
connivance, and those acquired by violence. I can see no difference 
between one who holds hy force what was acquired by fraud, and one 
who by force acquires a thing and employs force to hold it. There was 
no domestic violence in Louisiana two days after Penn drove Kellogg 
from the State-house. There was profound peace and quiet in the city 
of New Orleans, aud the same kind of peace that existed there exists 
in Arkansas. 

If the same policy had been pursued in the Arkansas case that was 
pursued in the Rhode Island case we would not be here asking congres- 
sional interference. By the action of President Tyler each citizen of 
Rhode Island was given to understand his exact status more than thirty 
days before the (commission of any overt act in the defense or support of 
what he believed to be the true government of the State ; but as mat- 
ters now stand, and as they have stood since the day Baxter abandoned 
the executive office and turned the same over to Garland, every man 
in Arkansas who resorted to arms to resist the Garland usurpation w^as 
asked to stalce his life that the President or Congress would sustain his 
view of the case. In view of the fact that this committee was charged 
with the duty of ascertaining whether there was a government, repub- 
lican in form, administered by the persons cliosen in the manner pre- 
scribed by the constitution and laws of the State, aud in view of the 



56 l^l^i' ft 

•MmI 1 1 |i|i|||LJi(||(MjjJj;|j III ^ 

fact that Coiijiiessisclotlioil with power to grant the 014 646 068 9 
pursued the paths of peace instead of those of disorder ami duinesiic 
violence. It we have failed in our pursuit of Elislia Baxter, to wrest from 
hiui the olliee of {governor, from the day Mr. Brooks presented his peti- 
tion to the ITouse of Representatives up to the present hour, it is 
attributable to a wantof knowledge and lack of experience, rather than 
a want of disposition. We have chased him like a thief having stolen 
property in ))ossession, until he has been compelled to throw the prop- 
erty from him ; and we tind him here to-day as the attorney of the 
receivers of stolen i)roperty he could no longer retain himself It now 
remains for you and (Congress to say whether we shall have our property, 
having fully identified it. 



LIBRARY OF CONGRESS 



014 646 068 9 f 



Conwrvatkn Resonrces 
Ll8-F^««» Type I 
Pb&S,BafIierad 



